Can You Call In Sick On Work And Go Cuti-Cuti? - Malaysia

Your bestie, Samantha is getting hitched soon so your girls plan a three-day bachelorette party at Boracay, Philippines in December 2020. Flights and the fancy-smancy villa you guys are partying in have been booked months in advance. You put in your annual leave application to block those travel dates.

Your Company lands a huge contract in December which has made your employer reject your leave application as they will need all hands-on deck. You are conflicted between upsetting your boss or risk being a social-pariah. Your friend suggests that you get fake Medical Certificates (“MC”) and go on the retreat.

Should you do this? What are the repercussions?

The Case of Dalia Ash’ari v Malaysia Airports (Niaga) Sdn Bhd [2020] 1 ILR 472

Brief Facts

The Claimant was a Senior Executive and had served the Company for 15 years before she got dismissed.

On 7 December 2017, the Claimant had applied for her annual leave for the period 13 December 2017 to 20 December 2017. Her leave application was still not approved as at 13 December 2017 and thus she had decided to go to work in the morning of 13 December 2017.

Whilst driving to her workplace in the morning of 13 December 2017, the claimant suffered a numbness attack. She had gone to a clinic and subsequently a hospital where she was given medical leave for 13 to 15 December 2017. Her leave was then approved for 18 December 2017 to 20 December 2017, since she was already on medical leave for the 13 to 15 December 2017. 16 and 17 December 2017 was a Saturday and Sunday respectively.

Whilst on medical leave, she had gone on holiday to Thailand and posted the same on her Instagram account and when the company became aware of it, it issued her a show cause letter. The claimant replied the show cause letter but the company not being satisfied with her explanations proffered therein, proceeded to conduct a Domestic Inquiry (‘DI’) against her.

At the conclusion of the DI, the Punishment Committee (‘PC’) decided to suspend her for 14 days without pay, but upon review by the Disciplinary Appeal Committee (‘DAC’), she was found not guilty of the charge levelled against her. The claimant thereafter continued to work as usual until 10 months later when the PC’s and DAC’s decisions were reviewed by Senior Management who found her abuse of medical leave serious enough to warrant the punishment of dismissal and accordingly dismissed her.

The claimant now contends that her dismissal had been carried out without just cause and excuse.

Court’s Decision

The Judge, Paramalingam J Doraisamy dismissed the Claimant’s claim for unjust dismissal and held as follows:

“(1) The claimant had not disputed travelling to Thailand whilst she had been on medical leave but her explanation had been that she had already bought the bus tickets and planned the trip with her family in advance. From the evidence adduced, it had been clear that she had abused the medical leave given to her when she had seen fit to travel to Thailand for a holiday when she should have been resting at home and the conclusion that could be drawn was that she had been malingering. The purpose of medical leave had been for convalescence and cure and it had not been up to her to decide what she could or could not do depending on the gravity of her illness or injury. Whether she had rested and/or cured herself in Thailand had been irrelevant. She should not have been travelling whilst sick in the first place. By her actions, she had clearly betrayed the trust and confidence that had been reposed in her by the company and it had not mattered that the company’s guidelines had been silent on the matter of abuse of medical leave being a serious act of misconduct (paras 27, 29, 31 & 33). (3) It had been hard to believe that it had been a mere coincidence that the claimant had fallen sick on the morning of her travel to Thailand, after finding out that her annual leave application had not been approved. The modus operandi in which she had gone about obtaining the medical certificates, when she had found out that her leave had not been approved and then rescheduling her travel dates to Thailand, had raised the presumption that she been malingering, which she had failed to rebut. She had committed a serious misconduct by travelling to Thailand for a holiday with her family, whilst she had been on medical leave. She had also exhibited sheer defiance and rebelliousness by posting videos of her holiday, during that period, on her Instagram account (paras 40-42).”

Conclusion

Next time you plan on taking an MC to go for a lepak session or holiday with friends and family, remember that this can be grounds for dismissal.