General law in relation to absenteeism

This article deals with the general law in relation to absenteeism. If you have any specific cases in relation to absenteeism, please consult a specialist legal professional to obtain advice.


The relevant section in the Employment Act 1955 that deals with absenteeism is section 15(2).


“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.”

Although the Employment Act 1955 applies only to employees under certain categories, in regard to those outside the scope of the Employment Act 1955, it is also common to have a similarly-worded clause in an employment contract or in the policy or employee handbook of a company.

Key words-
– more than two consecutive working days
– without prior leave from his employer
– attempted to inform his employer
– at the earliest opportunity during such absence

The ideal steps to be taken by an employer (at bare minimum)

1) (Usual scenario where the employee returns to work)
– ensure that the key words as stated above apply to the facts of the particular case of absenteeism
– issue a show cause letter
– wait for reply from employee
– read the reply from the employee and determine if the excuse is acceptable.
– if the excuse is unacceptable, then punish.

“On the grounds of misconduct, the employer may, AFTER due inquiry, impose any of the following punishments:
a) Dismiss without notice the employee;
b) Downgrade the employee (This means a demotion to a lower position and it may entail a salary reduction appropriate to the new grade); or
c) Impose any lesser punishment as he deems fit and just and fit.

Any lesser punishment may include: salary reduction/ deferment of increment/ suspension without pay/ written warning. Take note that if suspension without pay is imposed, the maximum period that is permitted is 2 weeks.

2) (scenario where it is habitual / repeated but does not amount to 2 consecutive days)
– take the steps as above, but issue a final warning. It must be habitual / repeated.

3) (scenario where the employee does not return to work)
– take the steps as above
– if no reply is forthcoming, then terminate.

OR

– Proceed against the employee for abandonment of contract.

Question
Why does the employer need to repeat the disciplinary process? Can’t the employer refer to the previous warning and just take immediate action on the absenteeism by punishing?

Answer
Section 20 IRA 1967 places the burden on the employer to show that the employee was fairly dismissed. The purpose is to prove to the court that there was just cause or excuse in dismissing and that the rules of natural justice were followed by providing the employee with the opportunity to explain his absence. Many (although not all) companies have in place a disciplinary procedure which is usually requires more steps to be taken compared to what is decided in case law. If the company is able to show that the due process of the disciplinary procedure was adhered to and followed, then there is a better chance that the court will agree with the company’s decision.

Question
How many times can the employer warn before there can be a dismissal of the employee?

Answer
There is NO set / fixed rule on the number of warnings to be given. It is not the case of 3 strikes, and you are out. All the cases have mentioned is that if its habitual and repeated, then it warrants dismissal. A one-off incident would not warrant dismissal. Each case must depend on its own particular facts and circumstances.

LATENESS
There is NO set / fixed rule on the number of warnings to be given. All the cases have mentioned is that if its habitual and repeated. A one-off incident would not warrant dismissal. Each case must depend on its own particular facts and circumstances.

Employers are encouraged to go through the appropriate disciplinary process, i.e. issue show cause letter, await reply, consider reply and then punish.

WARNINGS
Employers are discouraged from giving immediate warnings to employees. This is akin to punishing first without giving the employee the opportunity to explain his actions. The courts view warnings negatively.

Legal Disclaimer
The articles posted are for general information purposes only and should not be construed as legal advice. Facts and circumstances differ from case-to-case. Please consult your lawyer for specific legal advice and action to be taken.
This article is brought to you by Justin Lee (head the employment law practice in Donny Wong & Co.) and is copyrighted accordingly. Justin is an employment law specialist who can advise, draft and train your human resource managers.