8 May, 2017
Although employees may be entitled to a certain amount of annual leave, they do not have the discretion to go on leave at any time of their choosing and must ordinarily apply for leave in advance for their employers’ approval. This is to ensure that employers are able to make necessary work arrangements so that the employer’s business operations are not disrupted while the employee is absent.
However, the law also recognizes the need to accommodate for times when it may not be possible for employees to apply in advance due to unforeseen circumstances. In such a case employees are allowed to take what is commonly known as “emergency leave”, but not without a caveat:
- The employee must have a reasonable excuse for his absence; and
- The employee must have informed or attempted to inform the employer of such excuse prior to or at the earliest opportunity during such absence
What amounts to “reasonable excuse”?
Straight forward cases such as being involved in a motor vehicle accident or the death of an immediate family member will obviously be considered a “reasonable excuse” for absence without prior authorisation. However, there are many situations which are not so clear cut. In our practice, we have encountered many reasons given by our client’s employees for taking “emergency leave”. This has included:
- Flat tyre
- Attending a funeral of a distant relative
- Feeling depressed due to an argument with a spouse
- Going to court
- Death of a pet
- Sorting out their children’s disciplinary problems
- Bad weather
Are any of the reasons above “acceptable” excuses for taking emergency leave? What is reasonable or unreasonable is of course not exhaustive. The essential question to be asked is whether it is an emergency. The court in Sandran Perumal v Nestle Manufacturing (M) Sdn Bhd [2014] 1 MELR 762 said that the relevant consideration is:
“Whether the employee, at that material time, had given sufficiently cogent reasons and information for any reasonable employer in similar circumstances to consider the same leave request to be of an emergency nature.”
In that case, the employee alleged that he was absent because he had to address some issues concerning his family property in order to ensure that there was harmony in his family. The court held that this was not of an emergency nature since there was nothing which gave rise to a sudden event which was unforeseeable.
In another case, the Court held that being absent without prior notice or authorisation in order to attend the funeral of a distant relative (in that case, an uncle of the employee’s spouse) was not considered to be reasonable since the employee’s presence would not be “vital” to the funeral service.
What is the duty to inform?
Employees may be committing misconduct if they fail to inform their employer of their absence, even if they have reasonable and good reasons for not reporting to work.
Employees have a duty to inform or attempt to inform the employer at the earliest opportunity before or during his absence. Forgetting to inform is an untenable excuse that will usually not be tolerated by the courts.
What is required is that the employee takes reasonable steps to inform the employer. No method is prescribed by law in the manner in which the employee should inform the employer. It may even be done by way of a text message or telephone call as long as it is reasonable in the circumstance, unless the employer specifically prescribed a procedure for it.
Whom the employee informs is also important. In one case, informing the managing director instead of the employee’s immediate superior was held to be a contributory misconduct as the employee’s conduct had contributed to the uncertainty as to whether the employee had sought permission from the company. Similarly, asking a colleague to inform the immediate superior may also be inappropriate if the company policy requires leave applications to be made personally.
How should emergency leave be handled?
Employees should not assume that “emergency leave” is a convenient excuse for any sudden absence from work, especially if the reason for their absence could have been foreseen or planned in advance. For example, an employee who is required to attend court for a personal matter would normally be informed of the court date ahead of time – there is no excuse for that employee not to apply for annual leave in advance, rather than treating this as an emergency case.
Employers should also ensure that they monitor their employees’ use of emergency leave carefully and put in measures to ensure that this is not abused. The human resources department in particular plays a crucial role in ensuring the company’s policies on attendance and leave are complied with. Frequent, unjustified use of emergency leave could point to underlying problems, since it could be indicative of disciplinary problems.
For further information, please contact:
Donovan Cheah, Partner, Donovan & Ho
donovan@dnh.com.my
