By
Bryan Lui (Co-Managing Partner) [bryan_lui@luibhullar.com]
Harneshpal Karamjit Singh (Co-Managing Partner) [harnesh_bhullar@luibhullar.com]
Can You Terminate an Employee for Excessive Sick Leave in Malaysia?
Employers often grapple with employees who frequently take sick leave, especially when it conveniently extends weekends or holidays. While suspicions arise, medical certificates (MCs) typically shield employees from immediate disciplinary action. This article explores the legal nuances of terminating employees for excessive sick leave in Malaysia.
Understanding Malingering
"Malingering," defined as feigning illness to avoid work, is crucial. Cases like Ambank Berhad v Rasidah Othman and Maju Holdings Sdn Bhd v Nor Ashika Mohamed Dom illustrate that malingering is misconduct justifying dismissal.
Ambank Berhad v Rasidah Othman: An employee seen shopping while on MC was deemed to have falsified sickness.
Maju Holdings Sdn Bhd v Nor Ashika Mohamed Dom: An employee travelling extensively on MC was considered malingering.
These cases emphasize that MCs are not absolute defenses. If an employer can prove an employee misled a doctor or falsified an MC, it constitutes serious misconduct warranting dismissal.
Proving Malingering is Key
However, our courts stress that malingering must be proven. Merely taking numerous sick leaves, even with MCs, is not grounds for dismissal.
Vadiveloo Munusamy v General Tyre Retreaders Sdn Bhd: The High Court ruled that unless the MC's authenticity is challenged, or the employee is proven to have misled the doctor, frequent sick leaves are justified.
Practical Tips for Identifying Malingering
Employers should look for these signs:
Sick leave taken after weekends or holidays.
MCs from non-panel clinics.
MCs from various clinics.
Vague or unclear diagnoses on MCs.
MCs from clinics far from the employee's residence.
Social media activity contradicting claims of illness.
Legal Implications and Best Practices
An employee can be dismissed for malingering (dishonesty, insubordination), but not for simply taking many sick leaves with valid MCs.
For malingering, conduct a domestic inquiry.
For chronic illness, consider a medical board out IE: .employer terminates an employee's employment due to a medical condition.
Protecting Your Rights and Your Business
If you are an employer dealing with suspected malingering, it is vital to collect solid evidence. If you are an employee who believes you have been unfairly dismissed, it is important to know your rights.
Consult an employment lawyer in Malaysia or an employment law firm in Kuala Lumpur for guidance. If you believe you have been wrongfully terminated, seek a wrongful termination lawyer in Malaysia. Review your employment contract lawyer in Malaysia to ensure your rights. If you face discrimination, contact a workplace discrimination lawyer in Malaysia. Understand your employee rights lawyer in Malaysia and labour law in Malaysia. For employment law advice in Malaysia or industrial relations lawyer in Malaysia, seek professional guidance. Search “employment lawyers near me” for local expertise.
Conclusion
Employers must distinguish between genuine illness and malingering. Proper evidence and procedural fairness are essential for lawful dismissals. Employees must understand their rights and seek legal counsel when needed.
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