It’s an unfortunate situation whenever an employee suffers from an illness. It’s even hard for both the employee and the employer when the employee is always away from work. A large organisation can handle this absence with help from other colleagues, but it can be a challenge for small organisations.
Is it legal for an employer to fire an employee who’s always unwell? An employee is not to be blamed for being sick but to what extent is the employer required to support this?
The Employment Act 1955
According to the EA, an employee, upon the start of employment, is entitled to 14 days of paid sick leave. If the person worked for 2 years or more, they are entitled to 18 days. If they have worked for 5 years or more, then they are entitled to 22 days.
What about hospitalisation? An employee would be entitled to 60 days’ paid leave for hospitalisation.
Keep in mind that the EA is applicable to employees at the lower-income level (RM2,000 and below). As such, we could regard this as the minimum standard for everyone.
What if the employee uses up their sick leave?
In such circumstances, it will be open to the employee to rely on their annual leave. But what if this is used up, too?
Since the employee is unable to fulfil their contractual obligations, the employer-employee relationship cannot continue. Some companies may set a specific policy to deal with these situations.
Sick leave during probation?
Citing the case of Malaysian Smelting Corporation Bhd v Kesatuan Pekerja-Pekerja Perusahaan Pelaburan Logam Butterworth:
“Taking of medical leave supported by medical certificates may not be wrong in law and may not contravene the contract of employment.”
In fact, if an employer is on a duly certified medical leave, they may extend their probation period. This can be seen in VS v UMW Toyota Motor Sdn Bhd, the chairman Mohamad Amin Firdaus Abdullah said of an employee who had used almost all of the sick leave allocation that “it would have been fair to further extend the probation period to give her the opportunity to make amends.”
Can an employer reject a recognised sick leave?
Based on the EA, an employer has the ability to reject a recognised sick leave or medical certificate (MC) issued by a certified medical practitioner.
Section 60F(2)(b) of the Employment Act 1955 says:
The employee did not inform their employer within forty-eight hours (48 hours) of the commencement of the sick leave.
Thus, according to this clause, it is deemed the employee had absented himself from work without reasonable excuse for the days on which he was away from work.
The issue at hand is the employee had failed to inform his employer without any reasonable cause within the stipulated period of 48 hours.
Therefore employer has the right to refuse the sick leave and take appropriate disciplinary actions against the employee.
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Source: Sick Leave and Work by Bhag Singh
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