“Eh, you’re on Sick Leave Again?”

Dzulfadhli bin Lamin Designation: Lead Consultant Company: MECA South Sdn Bhd dzul@meca.com.my

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It is often frustrating for employers when faced with the problem of employees taking frequent sick leaves. These types of employees would usually call in sick on specific days i.e. Fridays or Mondays (to enjoy a longer weekend) or it’s often taken when their annual leaves application is rejected. Although this would raise suspicion on the genuineness of their sickness yet these employees are able to produce legitimate Medical Certificate (MC) from a certified medical practitioner. Therefore, employers are in a dilemma of whether they can take any disciplinary action against these types of employees.

The above behaviour can amount to a misconduct known as malingering. Malingering occurs when an employee pretends to be sick or injured in order to avoid coming to work. Such actions would disrupt the trust and confidence between the employer and the employee as both parties are expected to act honestly and obediently while in the course of employment.  

What does the law say about malingering?

In the case of Ambank Berhad v Rasidah Othman [2004] 1 ILR 1026, the employee was dismissed from employment after she was spotted by the officers of the company at KOMTAR shopping complex. The employee was carrying a few shopping bags despite being on medical leave. The company argued that this was not the first time she was spotted out and about while calling in sick.  The Industrial Court was of the opinion that the company had proven on balance of probabilities the act of malingering was committed by the employee, hence held the dismissal was with just cause and excuse.  

In another case of Maju Holdings Sdn Bhd v Nor Ashika Mohamed Dom (2007] 4 ILR 656, the employee who was on MC had instead of resting at home had travelled from Melaka to Kuala Lumpur and Shah Alam, and then back to Melaka while being on sick leave. The Industrial Court held that when the MC was issued to the company, it was assumed that the employee was sick and unfit to work hence being unable to travel. In this case, the employee had admitted to travelling more than 350km while being on sick leave and for taking multiple sick leaves for personal engagements – thus, the dismissal was with just cause and excuse. 

From the above cases, we learn that the Industrial Court deems malingering as a form of misconduct and if repeated; would ultimately amount to a gross misconduct which will then be subjected to a termination.

The Courts also emphasised the importance for the employers to prove malingering on behalf of the employee i.e. the employee had lied about being sick while abusing the sick leave entitlement for their own benefit. This is because when the employees are able to produce a Medical Certificate from a medical practitioner, it is always assumed to be for a genuine illness. The company may be at risk if there are no evidences to prove their claim for malingering. 

If you have a reason to believe that your employees have the tendency to commit the above misconduct, here are some tips and tricks to mitigate the situation;

In order to prove habitual malingering, you should create a timeline spread with the specific dates and reasons (i.e. sickness) the employee was on leave. This is to establish the reasonableness of the sickness and the amount of time sick leave was taken before you initiate any action.

Provide a specific list of panel clinics for outpatient visits. This can help you to monitor and investigate with the clinic directly for any suspicion of malingering. 

Keep alert on social media postings. You are more likely to learn about your employee’s whereabouts if they actively post contents in their social media i.e. on vacation and etc.

We are of the opinion that every case has its own independent facts and evidences; therefore, it is important for employers to build solid grounds of misconduct before initiating with disciplinary proceeding. Please do not hesitate to reach out to MECA consultants to learn more on the available methods and practices in dealing with malingering.