What To Do When Employee Refuses to Serve Their Notice Period

When a team member decides to resign, it can often throw leaders or managers off guard. On the one hand, you’ll need to think about the effect of your employee’s departure on the team’s performance and morale. On the other hand, you’ll need to look for a replacement - fast. 

Luckily, most employment contracts nowadays come with clearly stated notice periods for such situations. Notice periods are between the worker’s tendered resignation and their last working day in the company. They’re expected to perform the necessary handover tasks and formalities during this time. 

Nevertheless, a frequently-asked question in the HR world remains: what should employers or HR managers do when an individual refuses to work their notice period? Well, let’s dive into it without further ado.

The Employment Act 1955 states that employees in Malaysia have a general notice period of: 

• 4 weeks if the individual was employed for less than two years‍
• 6 weeks if the individual has been employed for at least two years but not more than five years‍
• 8 weeks if the individual was employed for at least five years

Nevertheless, it should be noted that the Act is only applicable to several categories of employees in West Malaysia, such as:

• Workers who have entered into a contract of service with a monthly salary of RM 2,000 or less
• Workers who are involved in manual labour (regardless of monthly salary)
• Domestic workers
• Any other categories of workers under the First Schedule of the EA 1955

Generally, the employee’s notice period should be outlined clearly in the employment contract. They can also decide to make a payment in lieu of their notice period should they need to leave instantly, as long as it is specified explicitly in the agreement. 

But what should I do if an employee ignores or refuses their notice period?

If the notice period is stipulated in the employment contract, the employee should be contractually tied to serve and work their notice period. So if an employee refuses to work during their remaining notice period, here’s what you can do.

First, understand and analyze the situation.

When a team member in your company resigns and refuses to work their notice period, be calm and don’t let your emotions get the best of you. Don’t forget that employees are humans who make mistakes, so not everyone may resign and leave the right way. Your focus here is on the well-being of the company so ask yourself these key questions: 

• How important is the role of this person to the company?
• Were you satisfied with the work performance of this individual?
• Will it be easy to replace this person?
• How long will it take to replace this individual? Will you need to train the new replacement?

Once you’ve found your answers, it will give you a brief outline of how this situation should go about and perhaps help you put things into perspective.

After that, discuss with the individual why they’re deciding to leave immediately. Is there a reason behind their rush or refusal to serve their notice period? Are they being pressured by their future employer? Were there any personal circumstances involved? Or has something happened in the company that forced them to leave immediately?

When you try to understand things from their perspective, you’re placing yourself in a better position to settle things more smoothly while ensuring that your team isn’t compromised.

If the above still didn’t work out:

You may seek or ask for payment in lieu of notice from the individual. For instance, if their monthly wage sums up to RM 10,000, the payment in lieu for a notice period of 2 months is equivalent to RM 20,000. 

If the individual still refuses to come to terms with that, then your next action is to take things to court. There are 2 options for this: 

• Labour Court
• Civil Court 

Nevertheless, note that the Labour Court will only apply for cases where the worker’s monthly salary is not more than RM 5,000. For employees with monthly wages exceeding RM 5,000, you may take legal action in the Civil court for breach of contract. At this point, it is highly recommended that you seek legal counsel or a firm for advice. 

But, of course, taking things to court would only make things sour for both parties. No one wants to leave on bad terms. It would be great to understand and consider the reasons behind the individual’s sudden departure first - without letting potential frustrations and negative emotions control you. Remember, your employees are human beings before anything else, so treat them with care and sincerity as best you can.

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