Thursday, March 10, 2016

AWOL - Absent without Leave (from work)

What happens when your staff decided not to turn up to work at all? Hilang tanpa dikesan, AWOL – Absent Without Leave!

Ada klausa Akta Kerja 1955 khas untuk kes seperti ini. Seksyen 15(2) Akta Kerja 1955, berkaitan ketidakhadiran pekerja tanpa sebab atau tanpa sebaran makluman. Terbaca seksyen ini –
“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”
Aplikasi cuti juga kerap disalahfaham pekerja, kelayakan cuti tahunan pekerja hanyalah kelayakan semata-mata dan bukanlah hak pekerja indefinitely!

Dengan menggunakan bilateral approach, cuti adalah kelayakan pekerja dan hak majikan. Hak majikan adalah kerana majikan mempunyai hak untuk melulus atau menolak permohonan cuti pekerja atas apa jua alasan-alasan. Kerana itulah bilateral dan bukanlah unilateral apabila cuti ini diperbualkan.

Ada juga yang confuse, Cuti Sakit atau MC juga dijadikan sebagai hak. Sama seperti Cuti Tahunan, Cuti Sakit juga menjadi hak majikan untuk melulus atau menolak. Tapi kebiasaannya, kebiasaannya majikan akan meluluskan MC atas sebab perikemanusiaan. Majikan juga ada hak untuk memanggil balik pekerja yang sedang bercuti atau sakit untuk menyiapkan kerja penting yang belum siap. Tapi atas dasar kemanusiaan dan ketimuran, kita tidak akan ganggu orang-orag yang bercuti.

TIga (3) kes berikut adalah contoh berkaitan cuti dari Mahkamah Perusahaan dan Mahkamah Persekutuan -

Metromix Sdn. Bhd v. Ismail Sulaiman (1996) 1 ILR 336, the Industrial Court held that:
“In cannot be denied a workman's leave is granted according to the exigencies of his service. Leave cannot be claimed as of right and the employer reserves the discretion to refuse or revoke leave. It, therefore, connotes the necessity of obtaining permission from his employer relieving him from the obligation of attending his work. Unless the permission or leave required is granted, the workman seeking leave cannot absent himself from work. Until and unless a workman's leave is approved by the proper approving authority he runs the risk of being absent without leave and in breach of statutory provision in the Employment Act.”

In Pan Global Textiles Bhd. v. Ang Beng Teik [2002] 2 MLJ 27, the Federal Court ruled no employee could claim as a matter of right leave of absence without permission and that remaining absent without any permission was gross violation of discipline, which constitute misconduct justifying the discharge of a workman from service. In so ruling, the Federal Court held as follows:-
 “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, therefore, gross violation of discipline … (emphasis added).

Pan Global Textiles Bhd. Pulau Pinang v. Ang Beng Teik, supra where it was held:

“The Industrial Court had also erred in law and in jurisdiction for having held that there was a dismissal without just cause or excuse of the respondent's services with the applicant company when there was in fact and in law no dismissal. It is settled law that unless there is a sufficiently important breach of contract by the employer and the employee's action is in direct response to the employer's breach, an employee who leaves his work will be held to have resigned and there will be no dismissal within the meaning of the employment legislation. It is clear that in this case it was the respondent who had refused to report for work and by that had evinced an intention of not wanting to continue his employment with the applicant. This being so the letter of the applicant dated 6 June 1989 ought to be taken as an acceptance of the repudiation of the contract of employment. The respondent, by his failure to report for work, had dismissed himself and the question of whether the “dismissal was without just cause or excuse by his employer” did not arise”. (emphasis added)

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