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2022 MarsdenLR 52
INDUSTRIAL COURT KUALA LUMPUR
THIEN PO YIN – Appellant
Versus
SANTARLI SDN BHD – Respondent
Award No: 1246 Of 2022 [Case No: 21/4-2059/20]
Persistent lateness and absenteeism can justify dismissal when the employee fails to prove claims of extenuating circumstances, despite having received multiple warnings.
Headnote:(A) Employment Law – Dismissal for Misconduct – The principle that repeated late comings and absenteeism constitute misconduct justifying dismissal is well established – In this case, numerous warnings were issued to the claimant regarding her attendance issues – Despite claiming medical conditions, the claimant failed to provide sufficient evidence to substantiate her claims or to prove she had been granted permission for flexible hours – The company's investigations and disciplinary actions were deemed valid and fair – The court found sufficient grounds for termination. (Paras 39, 40, 54, 81)
Facts of the case: The claimant was employed as a Secretary Cum Purchasing Officer but faced persistent attendance issues, including lateness and unauthorized absences, from late 2019 to early 2020. Despite receiving warnings and a show cause letter, her attendance failed to improve, and she was ultimately terminated. (Paras 2, 5, 35)
Findings of Court: The court held that the termination was justified as the claimant's conduct violated the company's attendance policies, and she could not establish her defense regarding medical conditions or flexible working arrangements. (Paras 60, 80)
Issues: The primary issues included whether the claimant proved her medical conditions and if the dismissal was justified given the evidence of her misconduct. (Paras 54.1, 54.3)
Ratio Decidendi: The court concluded that the consistent lateness and unapproved absences, coupled with the claimant's failure to adequately respond to disciplinary actions, warranted termination; the absence of solid evidence for her claims further supported this. (Paras 60, 80)
Result: Claimant's case dismissed.
AWARD
Introduction
[1] The claimant in this case commenced her employment with the company as the Secretary Cum Purchasing Officer on or around 1 March 2008.
[2] Initially, the claimant was required to report directly to the late Mr Johnny Choong Tean Chye, who was the former director of the company ("Mr Johnny") until he passed away in February 2019.
[3] After the demise of the late Mr Johnny, Mr Chai Chee Ming ("Mr Chai") was appointed as the company's director. As a result, the claimant was required to report directly to the new director, Mr Chai.
[4] At all material times, the company's rules and policies with regard to working hours and attendance applicable to all employees including the claimant are as follows:
4.1.Working hours shall be:
Monday to Friday 8.30am to 5.30pm
Saturday 8.30am to 12.30pm
4.2 All employees working in the office, including the claimant, shall record attendance time and leaving time every day at work through an attendance recording system designated by the company. 10.3 Based on the company's Employment Regulations which is also known as the Handbook ("Handbook"), the procedure for any employee to apply for leaves is clear:
(a) An employee who intends to take leave shall submit a leave form and obtain prior approval from the company. In unforeseen circumstances, for example when an employee falls ill suddenly, the employee shall immediately contact the company, and shall submit a leave form as soon as practicable after that or when resuming work (Refer: Article 11.1 of the Handbook);
(b) When an employee is absent from work due to illness or injury, a medical certificate shall be attached to the leave form submitted (Refer: Article 11.2 of the Handbook).
4.4. Based on the Handbook, it is clearly stated that an employee shall face disciplinary actions in the event of the following misconducts (Refer: Article 15.2 of the Handbook):
(a) Bad time-keeping
(b) Absenteeism
(c) Unreasonable or unexplained absence
(d) Breach of these regulations
4.5. These Rules and Policies have been practised back in the days way before the claimant's commencement of employment with the company.
[5] It came to the company's knowledge based on the attendance record that the claimant has been frequently coming late for work, absent without notice and leaving work early without approval for which the claimant was issued a warning letter dated 22 November 2019. In the Warning Letter, the company warned the claimant to rectify these misconducts immediately.
[6] On 26 November 2019, the company had attempted to serve the Warning Letter to the claimant personally, but the claimant had unreasonably refused to accept the Warning Letter.
[7] On 16 December 2019, the company issued another show cause letter to the claimant to require the claimant to explain her refusal to accept the Warning Letter ("Show Cause Letter").
[8] On 30 December 2019, the company received a reply letter dated 27 December 2019 from the claimant ("claimant's Reply Letter"). In which the fact that she had been frequently coming late for work, absent without notice and leaving work early were never denied. But she attempted to explain her misconducts by asserting as follows:
8.1. That she was late to work because of her health condition. Her alleged health condition included brain tumor, soft bone growth behind her neck causing pain and insomnia, heart problems pumping irregularly in the morning, coughing badly with blood and vomiting.
8.2. That the ex-director (the late Mr Johnny) permitted her to work with flexible hours due to her health condition.
8.3. That she had to leave work early because she did not have office keys and needed to go for treatments.
[9] Further, in the claimant's Reply Letter, the claimant claimed that the company should not have issued a memo to the suppliers about a new practice without first seeking her permission. The claimant then averred that this memo had defamed her because it created the impression that the claima
