Problematic Employees – Absenteeism and Excessive Lateness

Absenteeism and Excessive Lateness are two common disciplinary issues at the workplace.

This article addresses the laws surrounding them and provides guidance on how to deal with employees who are habitually absent or late.

Absenteeism

Absenteeism refers to an employee’s persistent, and often, unexplained and unapproved absence from the workplace.

In fact, absenteeism is an issue that is addressed by the Employment Act 1955, where s.15(2) of the Act 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.

Although the Employment Act only applies to employees as defined under the First Schedule of the Act, it makes it abundantly clear that unauthorised and prolonged absence is a breach of an employment contract.

Absenteeism as a form of misconduct is also emphasised by case laws; for example in the case of Cycle & Carriage Bintang Bhd v. Kong Yuen Hoong [2006] 2 ILR 1445, the Court held that unauthorised absence from the workplace without any prior approval  is “an outright violation of discipline.”

Further, the Federal Court in Pan Global Textiles Berhad Pulau Pinang v Ang Beng Teik [2002] 1 CLJ 181 stated the following:

No employee can claim as a matter of right leave of absence without permission and when there might not be any permission for the same. Remaining absent without any permission is gross violation of discipline. Hence, continued absence from work without permission will constitute misconduct justifying the discharge of a workman from service (OP Malhotra on The Law of Industrial Disputes). (pp 197 i & 198 b)

These legal principles were at play in the case of Wee Kheng Eng v. Limkokwing International Lifestyle Design Academy [Industrial Court Case No: 11/4-207/09], where the dismissal of an employee who was frequently absent from work, was to found to be with just cause and excuse.

Nevertheless, there are some circumstances where absence from the workplace, may be justified.

In the case of Wan Ahmad Firdaus Bin Wan Rossman v Hong Leong Bank Berhad, [Industrial Court Case No: 15/4-88/18], the employee who was a direct sales executive, was dismissed on the ground of absenteeism when he was away from the workplace without leave for 4 days. The employee claimed that due to the nature of his work – being a direct sales executive – he needed to work outside of the office. The Court found that the employee had been out of the office for more than 3 months, but nevertheless, the company actually was aware of his absence but had never complained about it, as it used to only care about the employee’s performance and collections only. As a result, the Industrial Court was not convinced that the company’s decision to dismiss the employee was based on his “absenteeism”. The Court held that the dismissal was without just cause and excuse.

Lastly, in relation to leaves, the case of Norsechem Latex Products Sdn Bhd v. Nalang Kani Suppiah [1993] 2 ILR 392 held that leave from work, such as annual leave, cannot be claimed as of right by the employee, but is always subject to the discretion of the employer.

Excessive Lateness

What is excessive lateness?

As decided in Leo Burnett Advertising Sdn Bhd v. Teh Bee Bee 2005] 1 ILR 141, lateness is considered absence without leave for the period between the time the employee is required to arrive and the time he/ she actually does arrive. The Court held that lateness is a species of unauthorised absence, and thus also a form of misconduct.

Leo also held that a company has the right to insist an employee be present at the starting time of work and it is irrelevant that the employee was late for a few minutes; it is still a form of misconduct, and if the lateness is persistent and habitual, then the misconduct is aggravated and may warrant dismissal.

What can the employers do?

1. Have an Attendance Policy

It is important for employees to be clear with his/her employer’s expectations for them to be met. An attendance policy would clarify these expectations, for example on the need to clock in and clock out, the proper leave application procedure, the consequences when an employee is late or when an employee is absent without approval, and so on. An attendance policy may also need to be updated to take into account the practice of work-from-home now, which became popular as a result of the pandemic.

2.  Keeping Tabs

It is important that employers put in place systems, preferably automated ones, that can record the attendance of employees. This is not meant as a form of surveillance, but merely to ensure everything is recorded and documented. This data will be extremely helpful if there is a dispute as to attendance and punctuality in the future.

3. Reward Good Behaviour

Whilst it is important to discipline bad behaviour, it is equally important to recognise, reward, and reinforce good behaviour. Rewarding employees with excellent attendance and punctuality sends a clear message that that is commendable at the workplace.

4. Avoid condonation

An employer must act swiftly when a certain employee is noticed to be absent without reason or late without explanation, if the employer deems that behavior as unacceptable. Otherwise, the employer may be viewed as condoning or accepting that behaviour, and thus may not use absenteeism or lateness to dismiss the employee later on.

In the case of Zulkefly Ibrahim v Airport Limo (M) Sdn Bhd [2008] 2 LNS 0299, the employee was absent from work from 25/9/2001 to 8/11/2001. However, the employer continued to hire him until 26/11/2001. The Industrial Court held that the employer had condoned the employee’s alleged misconduct and cannot, therefore, now use it to justify his dimissal.

Employers should instead discipline immediately by way of verbal warnings, warning letters, show cause, and punishment including demotion or dismissal.

Conclusion

In conclusion, absenteeism and habitual lateness are misconducts that have to be punished accordingly. Otherwise, they may encourage similar behaviour in other employees and thus leading to a drop in the overall efficiency and work ethic of the workforce.

Employers and HR practitioners are advised to take swift action against this behaviour and seek legal advice to ensure all actions taken are compliant with the law and that a complaint of wrongful dismissal can be avoided.

That being said, as the world moves online and as remote working becomes a trend, the idea of absenteeism and lateness may reduce in importance, and employees may be better judged by the results and value they generate.

If you require further advice or have any related queries, feel free to Contact Me.

Authored with the assistance of my able interns, Tan Zhi Yi and Shirlyn Choong.