It is common that employers find themselves with an employee who is always absent from work for the reason of being unwell. The employee’s sick leave is not only frequent but often taken on the day after a weekend or the day after a public holiday, resulting in a long weekend or extended holiday for him/her.

This naturally raises the suspicion of the employer, yet, the employee always manages to present medical certificates to support the sick leave and alleged unwellness. As a result, employers feel helpless as, despite their skepticism, they are unsure whether they can take any disciplinary action against the employee.

This alert aims to discuss the employer’s dilemma.

Malingering

Firstly, employers especially those in senior management handling the human resource portfolio must familiarise themselves with the term “malingering”. Malingering is defined in Black’s Law Dictionary (6th Ed) as “to feign sickness or any physical disablement or mental lapse or derangement, especially for the purpose of escaping the performance of a task, duty, or work, or for purpose of continuing to receive disability payments ”. It is the act of pretending to be sick to avoid going to work.

A few cases will help illustrate this. In Ambank Berhad v Rasidah Othman [2007] 4 ILR 656, an employee had taken leave from work and had submitted a medical certificate for her purported illness on 4 December 2002. In the afternoon of the same day, the employee was spotted in a shopping complex at KOMTAR. The employer viewed the employee’s conduct as falsifying sickness when she was not, and thus, malingering. The employer treated that act as misconduct and dismissed the employee. When the dismissal was disputed, the Industrial Court held as follows:

“In Employees’ Misconduct [As Cause for Discipline and Dismissal in India and the Commonwealth] by Alfred Avins 1968 Edition with 1987 Supplement on p. 488: – Malingering.

An employee may be disciplined for malingering and feigning illness to get out of a particular job is misconduct.

In Misconduct in Employment (in Public and Private Sector) by BR Ghaiye on p. 724, the learned author stated that:

Workers have no right to take leave on the ground of sickness when they are not actually sick. – Sometimes the workers feign sickness in order to get leave which is called ‘malingering’. The dictionary meaning of the word ‘Malinger’ is to feign sickness in order to avoid duty. It is usually done by producing false medical certificate. Malingering is a recognized misconduct but in order to show that the worker has taken leave on false grounds of sickness the medical certificate has to be examined in the light of the attendant and other circumstances”.

Accordingly, the Industrial Court ruled in favour of the employer and held that the employee’s act of malingering was a just cause or excuse for dismissal.

In Maju Holdings Sdn Bhd v Nor Ashika Mohamed Dom [2004] 1 ILR 1026, the employee was on medical leave on 25 September 1997, but she admitted that she went from Malacca to Kuala Lumpur then to Shah Alam on the same day. The Industrial Court held that had the employee been genuinely sick, she should have rested at home. The Industrial Court commented:

“When the medical certificate was issued to the Claimant, it was assumed that the Claimant was sick and unfit to work. If she was unfit to work then she was also unfit to travel. The Claimant who reported sick on the day travelled 350 k.m. ie from Malacca to Kuala Lumpur and then to Shan Alam and then back to Malacca. If the Claimant was really sick she certainly could not have travelled the distance. It is the view of this Court that the Claimant was not sick on 25th September 1997. She was in fact malingering. The word malingering is to feign sickness in order to avoid duty. The Claimant’s act tantamount to misconduct. The Court views the act of the Claimant seriously. This Court finds the Claimant guilty of Charge 7.”

Our Courts have repeatedly held that if an employee was caught malingering, it is a form of misconduct that justifies dismissal. Further, cases like this also illustrate that having a medical certificate is not an absolute defence. Quite the contrary, if an employer can prove that the employee had misled a doctor to provide a medical certificate despite not being genuinely sick, or worse, falsified a medical certificate, it is a more serious misconduct that warrants dismissal.

Malingering Must Be Proven

However, our Courts have emphasized that it is crucial for malingering to be proven, i.e. an employer must prove that the employee had indeed lied about being sick and if medical certificates were used, that the medical certificates were indeed wrongfully obtained. Without malingering, the act of taking many sick leaves, per se, is not misconduct or a just cause for dismissal.

This was what transpired in Vadiveloo Munusamy v General Tyre Retreaders Sdn Bhd [1999] 1 CLJ 391. The High Court, in quashing the Industrial Court’s decision and substituting with a decision that the dismissal was without just cause or excuse, stated the following:

“The Company is not disputing the doctor’s competence nor is the Company challenging the doctor’s professionalism. What the Company is contending is that the Claimant at the material time induced the procurement of medical leave by misleading the doctor as to the cause of his alleged backache. The Company, in fact, conceded that employees do fall sick and are entitled to medical leave. It is the Claimant’s modus operandi in obtaining medical leave that is under scrutiny and suspicion.

Short of calling the doctor by the respondent to testify on the issue, the contention of the respondent remains a conjecture and for that the applicant should not be made to suffer. This fact concerning sick leave supported by a medical certificate is recognised by s. 60F of the Employment Act 1955. If the employer is not happy with the valid certificate tendered, the evidence of the doctor who issued such a certificate is very relevant. But in this case the doctor was not called to testify. It is understandable because the respondent does not question the validity of the certificate. What the witness told the court of what the doctor told him over the telephone is hearsay and should not have been admissible as evidence against the applicant. In this case, there is the evidence of the applicant himself that he had been suffering from backache for a long time and this fact is within the knowledge of the respondent. There was no challenge over this piece of evidence by the applicant. There was also no evidence before the learned chairman that it was the applicant who insisted upon the panel doctor to have him referred to the General Hospital for further treatment.

On this aspect of the findings of the learned chairman he had indeed committed a serious error of law.”

Thus, if an employee took many sick leaves, but all of which were supported by medical certificates, and the medical certificates’ authenticity and legitimacy were not or could not be challenged, then the Court will likely find that the medical certificates were rightfully granted, and therefore the sick leaves, though frequent, were justified.

Practical Tips

Having explained the legal principles, here are some signs of malingering to help employers and human resource managers spot the misconduct. Examples are:

• The sick leave were often taken the day after a weekend or a public holiday.

• The medical certificates were given by clinics that are not on the company’s panel of clinics.

• The medical certificates were given by different clinics most, if not, all the time.

• The medical certificates do not state with specificity or clarity the precise diagnosis or the actual sickness suffered by the employee.

• The medical certificates were given by clinics far from the employee’s place of residence.

• The employee’s social media shows that he/she did not stay at home on the day of the sick leaves.

Conclusion

An employer can only dismiss an employee for malingering and not for taking too many sick leaves, particularly if all of the sick leaves were supported by legitimate medical certificates. In the former scenario, it is a form of misconduct, as it contains elements of dishonesty and insubordination. As it is a misconduct issue, employers are advised to conduct a domestic inquiry before dismissing the employee. For the latter, the proper way to dismiss an employee for being constantly sick is by way of a medical board out, which will be discussed in another article.

This article was first published by my firm Rosli Dahlan Saravana Partnership and a PDF copy can be downloaded here