Annual Leave – Entitlement v Approval
Annual Leave – Entitlement v Approval
Annual Leave is an entitlement provided to employees depending on years of service with the Company. Even though Annual Leave is an entitlement, the employee is required to apply and seek approval before commencing the Annual Leave. An employee who proceeds to take leave upon application of leave and without obtaining approval risking for disciplinary action for absenteeism from work. Where an employee proceeded with Annual Leave despite the Company rejected the application, the employee commits gross misconduct of insubordination and disobedience. No company can operate effectively given such circumstances.
Further, if the absenteeism is more than two consecutive working days, it shall be breaching the employment contract as provided in Section 15(2) of Employment Act 1955. The Company may terminate the service of the employee under Section 13(2) of Employment Act 1955 for wilful breach of the terms of the employment.
In the Case of Pan Global Textiles Pulau Pinang v Ang Beng Teik (2002) 1 CLJ 181 the Federal Court had the occasion to state the following :- OP Malhotra in his book "The Law of Industrial Disputes" (2nd edn.), at p. 581-582, said: No employee can claim leave of absence as a matter of right, and remaining absent without leave will itself constitute gross violation of discipline. Hence, continued absence from work without permission will constitute misconduct justifying the discharge of a workman from service
Tiow Siong Lai v Feiti (M) Sdn Bhd, Award no 463 of 2018 The Claimant was dismissed due to the Claimant being absent from work without permission on 6th, 12th – 17th and 22nd February 2016. The Court finds that the Claimant had proceeded to go on leave despite knowing that his leave is yet to be approved. The Court finds the action of the Claimant to be one of gross insubordination. The Court is of the considered view that the Claimant's dismissal was with just cause and excuse.
Bank Bumiputra Malaysia Bhd v. Mohd Azhar Mohd Tajudin; Award No. 399/2003 It was held that the employee's continued absence despite being informed by the employer that leave was not granted, constituted not only willful insubordination and disobedience but also amounted to grave misconduct. His misconduct was further aggravated by the fact that he had been previously counseled and warned at a prior domestic inquiry not to repeat the same offence of absenteeism without leave.
Metromix Sdn Bhd v. Ismail Sulaiman (1996) 1 ILR 336 Right of the Employer The court stated that leave cannot be claimed as of right and the employer reserves the discretion to refuse or revoke leave. Unless the permission for 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 provisions in Employment Act 1955.
Conclusion An employee must apply and obtained approval before commencing leave. The employer has the right to approve, refuse or revoke leave application based on operational needs.