A. Introduction

Regardless of your wage, if you are an employee working in Peninsular Malaysia, you are protected under the Employment Act 1955[1] and are legally entitled to Sick Leave under Section 60F of the Employment Act 1955.

Therefore, applying for Sick Leave is an employee’s statutory right and cannot be refused by their employer provided the employee has complied with the necessary procedures in applying for Sick Leave (which will be explained below).

That being said, Sick Leave may be abused by some employees as it is a paid leave and often the entitlements are more than what an employee may be entitled to under its Annual Leave. Thus, employers must constantly be wary of this possibility and take action promptly, and legally. At the same time, employees must know that they may face severe consequences if they abuse their Sick Leave.

This article discusses the basics of Sick Leave in Malaysia.

B. Right to Sick Leave

Every employee who is covered under the Employment Act 1955 is entitled to Sick Leave. Depending on the employee’s length of service with his/her employer, his/her Sick Leave entitlement will vary accordingly.

An employee’s entitlement to paid Sick Leave under the Employment Act 1955 s.60F(1) is as follows:

(aa)   where no hospitalization is necessary, –

• of fourteen days in the aggregate in each calendar year if the employee has been employed for less than two years;
• of eighteen days in the aggregate in each calendar year if the employee has been employed for two years or more but less than five years;
• of twenty-two days in the aggregate in each calendar year if the employee has been employed for five years or more; or

(bb)   of sixty days in the aggregate in each calendar year if hospitalization is necessary, as may be certified by such registered medical practitioner or medical officer:

Provided that if an employee is certified by such registered medical practitioner or medical officer to be ill enough to need to be hospitalised but is not hospitalised for any reason whatsoever, the employee shall be deemed to be hospitalised for the purposes of this section. 

The duration of Sick Leave provided by the Employment Act 1955 sets the minimum standard that employers are obliged to abide by but they may provide more days if they wish to.

Additionally, Employers are reminded that with effect from 1 January 2023, their employees are now entitled to Sick Leave and hospitalisation leave (where hospitalisation is necessary) wherein the 60 days entitlement of the hospitalisation leave is in addition to the employee’s Sick Leave entitlement, and not to be treated as an aggregate of 60 days.

Further, if an employee is certified by such a registered medical practitioner or medical officer to be ill enough to need to be hospitalised but is not hospitalised for any reason whatsoever, the employee can still claim his hospitalisation leave.

C. Procedure and Application for Sick Leave

Employees and employers are reminded that all applications for Sick Leave must follow the requirements of the Employment Act 1955.

Under Section 60F(2) of the Employment Act 1955, an employee who absents himself on sick leave–

• which is not certified by a registered medical practitioner or a medical officer as provided under subsection (1) or a dental surgeon as provided under subsection (1A) ; or

• which is certified by such registered medical practitioner or medical officer or a dental surgeon, but without informing or attempting to inform his employer of such sick leave within forty-eight hours of the commencement thereof,

shall be deemed to absent himself from work without the permission of his employer and without reasonable excuse for the days on which he is so absent from work.

However, if all necessary procedures are complied with, employers are obliged under Section 60F(3) of the Employment Act 1955 to provide their employees their ordinary rate of pay for each day of Sick Leave taken i.e. paid Sick Leave (with the exception of female employees who are already entitled to maternity allowance as provided by Section 60F(4) of the Act).

Where employers fail to comply with the provisions of Sick Leave under the Employment Act 1955, such employers would be committing an offence under Section 100(5) of the Act and may be liable to pay to the employee concerned their Sick Leave pay for each day of Sick Leave taken based on the rate aforementioned and the amount ordered by the court to be paid shall be recoverable as if it were a fine imposed by such court.

D. Common Circumstances Surrounding Abuse of Sick Leave

D1.       Unauthorised Absence for More Than 2 Consecutive Days

If unauthorised absence by an employee persists for more than 2 consecutive working days without prior notice and reasonable excuse to the employer, it will be deemed that the employee concerned has broken his contract of employment with his employer.

This is provided by Section 15 of the Employment Act 1955 which it provides the following:

(2)     An employee shall be deemed to have broken his contract of service with the employer if he has been continuously absent from work for more than two consecutive working days without prior leave from his employer, unless he has a reasonable excuse for such absence and has informed or attempted to inform his employer of such excuse prior to or at the earliest opportunity during such absence.

Therefore, employees who just fail to show up on more without notification or leave for more than 2 consecutive days, can be deemed to have breached their contract and abandoned their employment. Their attempt to say it was because that they were sick after that, would not excuse them from such behaviour.

D2.       Excessive Sick Leave

In Dunlop Malaysian Industries Employees Union v Dunlop Malaysian Industries Bhd [1981] 1 ILR 648, the Claimant allegedly took 49 days of medical leave from January to September 1979 and 32 days of medical leave from August to September 1980.

The Claimant had also obtained his medical leave from seven different clinics when he was on medical leave from 8 August 1980 to 9 August 1980 and 16 August 1980 to 23 August 1980.

The Court held that the Claimant’s pattern of Sick Leave showed an intention not to perform his contractual obligation to his employer and thus, the dismissal was with just cause and excuse.

Having said that, this shall be threaded with caution as the Court also recognises that taking excessive Sick Leave “may not be wrong in law or may not contravene the contract of employment” if it can be substantiated with authorised medical certificates.[2]

D3.       Malingering

In The Regent Kuala Lumpur v Gerad A/L Anthony [1996] 1 ILR 658, the Claimant was deemed to be malingering as he had deceitfully obtained medical leave to attend the Company’s family day celebrations. Coupled with the charge of insubordination, the Court held that the Claimant’s dismissal had been with just cause or excuse.

As such, at times, even when an employee has a medical certificate, if he/she is caught clearly not sick on the said sick day, such as being caught being out and about or travelling, he/she may be deemed to be malingering and therefore warrant a dismissal.

Meanwhile, employers are reminded that if they are slow to respond to their employees’ absences, there is a possibility that it may be construed as condoning their malingering or excessive Sick Leave.

In Pulai Mewah Sdn Bhd v Leong Fook Heng [2002] 2 ILR 279, the Claimant was found to be absent from work for more than a month without leave. He contended that the Company had condoned his excessive absence from work but this was not accepted by the Court because the Court believed that the Company was giving time to the employee concerned to improve on his performance and when he did not, he was subsequently terminated.

For more information on malingering, click here.

E. Termination on Medical Grounds and Medical Boarding Out

In some circumstances, termination based on medical grounds can be justified if the employee concerned is no longer physically fit to continue working and there is no prospect of the employee recovering from his illness, rendering his future performance of his obligations at work impossible.

And one of the most obvious and early signs of such medical incapacity is when the employee starts taking excessive Sick Leave.

This was the situation faced by the Company in Kempas Edible Oil Sendirian Berhad v Abu Bakar Talib [2008] 3 ILR 11 where the Court held that the employment contract was frustrated because the Claimant could no longer perform his contractual duties due to his illness so his termination was with just cause and excuse.

However, an employer cannot outrightly terminate any of their employees when they are physically unable to continue working. Certain factors and principles must first be considered before doing so, as discussed in Mohamed bin Mutok v Malaysia Airports Sdn Bhd (Award No. 1151/2024).

Firstly, an employer must investigate the extent of their employee’s sickness by obtaining the required medical advice. Secondly, they must give the said employee sufficient time to recover from their illness and not rush into terminating the employment relationship. Thirdly and lastly, due to the employee’s unfortunate circumstance, an employer is expected to demonstrate sympathy, understanding and compassion towards their employees. An employer should consult with their employee on their medical condition so that the employer will be well-informed and any decision to dismiss their employee will be a reasonable one.

Apart from these principles, the Court in Mohamed bin Mutok v Malaysia Airports Sdn Bhd also referred to Gopalakrishnan Vasupillai v Goodyear Malaysia Berhad & Anor [2010] CLJU 637 and considered these factors:

• The size and administrative resources of the employer’s undertaking; and
• The employer’s obligation of social conscience to make minor adjustments to the employee’s job (or offer alternative employment).

It is pertinent to note that the Employment Act 1955 is silent on the minimum requirements an employer must comply with before proceeding with medical boarding out.

Therefore, employers are encouraged to draft clear and transparent medical boarding out procedures in their employment contracts and company policies (taking into consideration the abovementioned principles and factors discussed).

Having such procedures will assist employers in defending their decision to terminate their employees on the grounds of medical boarding out, that it was done with just cause or excuse.

F. Advice to Employers

F1.    Conduct Proper Investigation

As explained earlier, employers must properly investigate the extent of their employees’ illnesses before making any decision on their employment, especially if the reality is that the employee is in fact abusing their Sick Leave or is malingering. Employers who hastily terminate their employees for taking excessive Sick Leave without proper investigation may face a wrongful dismissal claim in court.

For instance, in the case of MHS Aviation Sdn Bhd v Zainol Akmar Mohd Noor [2001] 2 MELR 133, the Court held that the Company had unfairly terminated his employee after he was diagnosed with acute inferior and posterior myocardial infarction and deemed unfit to carry out flying duties for six to nine months because they had failed to make enquiries on his illness and terminated him based on the assumption that his illness was permanent.

F2.    Offer Alternative Employment

As discussed, although not legally obligated, employers may offer alternative employment to their ill or disabled employees and this may be in the form of an existing but lower-paying job.[3]

When the employee refuses such an offer then it will be very reasonable for the employer to dismiss said employee.[4] That said, employers are not under any duty to create a new job or modify existing jobs to cater to said employee but are only required to consider the employee’s ability to perform.[5]

F3.    Introduce Flexible Working Arrangement

With the exception of certain industries, employers may consider allowing employees to adopt a flexible working arrangement at work such as working from home, starting work at a later time, adopting a hybrid work style, or even introducing sabbatical leave.

In fact, employees are allowed to apply for flexible working arrangements following Section 60Q of the Employment Act 1955 and employers must approve or refuse such application within 60 days of the date the application is received. The benefit of this approach is two-fold as it allows employers to be empathetic towards their employees’ illness and continue to meet the demands of their business.

G. Conclusion

Employers are obliged to respect their employees’ legal entitlement to paid Sick Leave, especially if the applications have been made with the support of genuine medical certificates, verifying that their employees are physically unwell to attend work.

However, if employers discover that their employees are taking excessive Sick Leave to avoid working or are found to be malingering, they should take appropriate disciplinary action as necessary.

Conversely, for employees who are genuinely sick and/or are physically unable to continue working, employers should be exercise compassion towards such employees by giving them sufficient time to recover and offer alternative employment where possible.

Meanwhile, employees are also reminded to not abuse such entitlement, as any such abuse may attract strict disciplinary action, including dismissal.

PS: If you are facing similar issues at the workplace, and need advise moving forward, please feel free to contact us.

[1] Pursuant to the recent amendment to the Employment Act 1955 vide the Employment (Amendment) Act 2022 and the Employment (Amendment of First Schedule) Order 2022, provisions of the Employment Act 1955 are now applicable to all employees as defined under the Employment Act 1955 (with exception to certain provisions not applicable to employees with wages above RM4,000.00).

[2] Malaysia Smelting Corp. Bhd. v Kesatuan Kebangsaan Pekerja-Pekerja Perusahaan Peleboran Logam, Butterworth [1992] 3 CLJ 29.

[3] Dapat Hotel Sdn Bhd (Holiday Inn, Johor Bahru) v Kesatuan Pekerja Pekerja Hotel, Bar dan Restoran [1985] 1 ILR 475.

[4] Dapat Hotel Sdn Bhd (Holiday Inn, Johor Bahru) v Kesatuan Pekerja Pekerja Hotel, Bar dan Restoran [1985] 1 ILR 475.

[5] Dapat Hotel Sdn Bhd (Holiday Inn, Johor Bahru) v Kesatuan Pekerja Pekerja Hotel, Bar dan Restoran [1985] 1 ILR 475.