What is Emergency Leave and How Does it Work in Malaysia?

What is emergency leave?

In Malaysia, workers do not really have the discretion to be absent at any time unless for very important reasons. But, the law also knows that there is a need to accommodate for times when it may be impossible for a worker to apply for leave in advance because of unforeseen circumstances.

In such cases, workers are allowed to take what is usually known as "emergency leave". This type of absence enables the worker to manage emergency leave without prior authorisation. Of course, there are certain conditions:

• The worker must have a reasonable and acceptable excuse for their absence.
• The worker must have informed or tried to inform the employer of such excuse before or at the earliest opportunity during such absence. 

What qualifies as a reasonable excuse? 

There are straightforward situations such as being involved in a motor vehicle accident or the death of an immediate family member can be considered as a "reasonable excuse" for excuse without prior authorisation. 

A traffic accident is a reasonable excuse for an emergency absence.

But, there are also many circumstances that are not so clear cut. Here are several excuses that are not considered as "reasonable" for a worker to manage emergency leave: 

• Bad weather
• Flat tyre
• Attending a funeral of a distant relative
• Death of a pet
• Feeling depressed due to an argument with a family member

According to the case of Sandran Perumal v Nestle Manufacturing (M) Sdn Bhd [2014] 1 MELR 762:

“Whether the employee, at that material time, had given sufficiently cogent reasons and information for any reasonable employer in similar circumstances to consider the same leave request to be of an emergency nature.”

In this case, the employee alleged that he was absent because he had to address some matters concerning his family property in order to ensure that there was harmony in his family. The Court held that this was not of an emergency nature since there was nothing which gave rise to a sudden event which was unforeseeable. 

In a different case, the Court held that being absent without prior authorisation in order to attend the funeral of a distant relative was not considered as reasonable since the employee's presence would not be "vital" to the funeral service. 

The employee must inform their employer!

If an employee fails to inform their employer of their absence, they may be committing misconduct, even if they have reasonable reasons for not reporting to work. 

Workers are responsible for informing or attempting to inform the employer at the earliest opportunity before or during their absence. Usually, the courts will not tolerate unreasonable excuses such as the worker forgot to inform the employer. 

The worker must take reasonable steps to inform the employer. However, the law did not prescribe how a worker should inform their employer. It could be done through a text message or telephone call as long as it is reasonable in the situation unless the employer specifically prescribed a procedure for this type of leave. 

The workmen can inform the employer in multiple ways, such as a telephone call.

It's also crucial for the worker to inform the right person. In one case, the worker informed the managing director instead of their immediate superior. This case was held to be contributory misconduct as the worker's conduct had contributed to the uncertainty as to whether the worker had sought permission from the company.

The worker also should not ask a coworker to inform the immediate superior if the company policy requires applications to be made personally. 

How to manage emergency leave

Employer

To manage emergency leave, employers should ensure that they monitor their employees' use of it carefully and put in measure to ensure that it is not abused. The HR department plays an important role in ensuring the company's policies on attendance and absence are complied with. 

Frequent and unreasonable use of this absence could point to underlying problems as it could be a sign of disciplinary problems. 

Employee

Employees should not manage emergency leave as a convenient excuse for any sudden absence from work, particularly if the reason for their absence could have been foreseen or planned in advance.

For instance, an employee who is required to attend court for a personal matter would normally be informed of the court date ahead of time. There is no excuse for the employee not to apply for annual leave in advance, rather than treating it as an emergency case. 

In conclusion, employees should be aware that emergency absence is not something they can take for granted. Employers should also make it clear for employees on how they should inform the employers in case of emergency. This will surely make it easier for employers to manage emergency leave. 

Source: Donovan & Ho 

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