AA v Overseas Assurance Corporation (M) Berhad [2006] 2 MELR 622

AA v Overseas Assurance Corporation (M) Berhad [2006] 2 MELR 622

Industrial Court (Kuala Lumpur) 

Justification of Dismissal for Serious Misconduct

1. The Claimant, AA, was employed by the Company as a receptionist/clerk Grade 2 on 5 November 1984. At the time of her dismissal in 2002, she had served the Company for approximately 18 to 20 years.
2. The Claimant applied for annual leave for 31 December 2001, 2 January 2002, and 4 January 2002. While these dates were approved, her superior (COW3) expressly noted on the form that she must return to work on Saturday, 5 January 2002.
3. The Claimant failed to report for work on 5 January 2002. She was also absent from 8 January 2002 to 11 January 2002 without prior application or approval.
4. She contended she was stranded in Indonesia because the ferry she intended to take had broken down. She further claimed telecommunication lines were down, preventing her from notifying the Company immediately, though she eventually had her daughter call the office.
5. The Company sent a representative to the ferry terminal and a telecommunications provider (Wartel), both of whom reported no major service interruptions during the period the Claimant alleged.
6. The Company provided evidence that the Claimant was a “habitual absentee” who had received previous verbal and written warnings regarding her absenteeism and for submitting false information.
7. After a period of suspension and an evaluation of her explanations, the Company terminated her services on 28 January 2002.

1. Whether the Claimant was dismissed by the Company with just cause or excuse.

(1) Whether the Claimant was dismissed by the Company with just cause or excuse.

(a) No employee can claim leave of absence as a matter of right without permission. Leave is strictly subject to the prior approval of the employer as per stated in the case of Pan Global Textiles Bhd Pulau Pinang v Ang Beng Teik [2002] 2 MLJ 27. 

(b) The absenteeism from work is an “outright violation of discipline”, which is aggravated when an employee ignores a direct instruction to report for work. Therefore, absence without leave is categorized as serious misconduct, especially in instances where the leave was explicitly refused or the employee was directed to report to work. 

(c) A significant part was the Claimant’s history of habitual absenteeism and the fact that the Claimant had been previously reprimanded. The Court ruled that the Claimant’s recent absenteeism without approval was compounded by the past warnings, justifying the severe disciplinary action of dismissal.

(d) The Court held that the Claimant’s repeated misconduct in treating leave as a matter of right gave the Company ‘no choice but to dismiss her’. The dismissal was found to be justified according to equity and good conscience because the Claimant failed to realize that prior permission was a prerequisite for absence. The Court referred to Wong Chee Hong v Cathay Organisation (M) Sdn Bhd [1988] 1 MLJ 92 and Goon Kwee Phoy v J & P Coats (M) Bhd to establish its duty to determine if the proven misconduct constituted just cause for dismissal.

The Industrial Court decided that the Company had successfully proved, on a balance of probabilities, that the Claimant was dismissed for just cause or excuse. 

The Claimant’s repeated failure to obtain prior approval for leave and her failure to notify her employers during her absence justified the Company’s action. The verdict is that the Claimant’s claim for reinstatement was dismissed.

1. Leave is a privilege subject to management approval, not a right to be taken at the employee’s whim. 
2. Employees have a strict duty to notify their employers of any unforeseen absence, “unpredictable conditions” require proactive communication.
3. A clean record for long-tenured employees is helpful, but repeated warnings for the same misconduct can lead to justifiable dismissal.
4. As for the burden of proof, the Company must prove the misconduct on a balance of probabilities.