Forced to Use Annual, Unpaid Leave for Company’s CNY Closures? It’s Illegal! Here’s How to File a Report

With the Chinese New Year (CNY) just around the corner, those of us in the Klang Valley can breathe a sigh of relief as the traffic chaos finally eases up and the ‘balik kampung’ exodus begins. With the two-day public holiday potentially overlapping with the start of Ramadan, many are heading home for a truly special double celebration, something uniquely Malaysian!

However, before you gallop to your hometowns this Year of the Horse, there’s one important thing you should check. If your employer asks you to take annual leave or unpaid leave because your company is closed for an extended period this CNY, know that this is against the law.

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Here’s everything you should know:

Employers can’t force their employees to take annual leave or unpaid leave

Speaking to WORLD OF BUZZ, Danial Harith, an associate at Kuala Lumpur-based law firm ADIL Legal, explained that under Section 60E(1) of the Employment Act 1955, an employee is entitled to paid annual leave of:

• Eight days for every twelve months of continuous service with the same employer if they have been employed by that employer for a period of less than two years
• Twelve days for every twelve months of continuous service with the same employer if they have been employed by that employer for a period of two years or more but less than five years
• Sixteen days for every twelve months of continuous service with the same employer if they have been employed by that employer for a period of five years or more

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Furthermore, if the employee has not completed twelve months of continuous service with the same employer during the year in which their contract of service terminates, their entitlement to paid annual leave shall be in direct proportion to the number of completed months of service. Subsection 1A adds that this paid annual leave shall be in addition to rest days and paid holidays.

However, Danial stressed that employers are not allowed to force an employee to go on annual leave on the employer’s own accord, as it’s the employee’s prerogative.

He then referenced the case of Kesatuan Pekerja-Pekerja Continental Tyre Pj Malaysia Sdn Bhd v Continental Tyre Pj Malaysia [2015] 3 ILR 462, in which Continental compelled its employees to use their respective annual leave during a plant shutdown, but didn’t pay the workers their wages to go on leave.

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“The Industrial Court found that Continental had the right to shut down the plant, but didn’t have the right to force its workers to take annual leave during the shutdown,” Danial explained.

“Continental was then ordered to either pay the workers for the days they had not been paid or grant them 2 days of annual leave from the date of the decision,” he added.

How to report your employer if they forced you to take annual leave

There are several different ways you can report your employers if they forced you to take annual leave or unpaid leave, including:

1. Write a complaint to the nearest Department of Labour (JTK) office. You can find the list of JTK offices and their addresses nationwide here
2. Write a complaint via email to the JTKSM official email at ym.vog.rhomobfsctd-45dd68@msktj
3. Lodge a complaint online via the Public Complaint Management System SISPAA here
4. Walk into the nearest JTK office to lodge a complaint
5. Call 03-80008000
6. Lodge a complaint via the Working for Workers application. Download links for Android here and iOS here

Here is the Information required when lodging a complaint:

• Complainant’s full information (Name, address, telephone number and email)
• Complained party’s full information (Name, address, telephone number and email)
• Issues of complaint
• Copy of relevant supporting documents, such as letter of offer/employment contract and latest payslip

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An employee can’t go on annual leave as they please

On the flip side, Danial stated that an employee also can’t go on annual leave as they please. This was established in the case of Pan Global Textiles Bhd. Pulau Pinang v. Ang Beng Teik [2002] 1 CLJ 181.

Notably, the judgment states:

“No employee can claim as a matter of right leave of absence without permission, and when there might not be any permission for the same… Hence, continued absence from work without permission will constitute misconduct justifying the discharge of a workman from service.”

Furthermore, Danial added that in the case of Puan Azinah binti Aziz v Overseas Assurance Corporation (Malaysia) Berhad [2006] ILJU 255, the Court found that although Puan Azinah has worked in the company for 20 years, the company has the right to dismiss her if she takes leave without approval from her boss, as taking a day off without consent is classified as a case of serious misconduct.

He clarified:

“Hence, do note that employers have the right to reject leave applications for various reasons. These include insufficient notice, non-compliance with company policy, other employees going on leave during the same period or urgent work that needs to be completed.”

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Last year, the Ministry of Human Resources (KESUMA) issued a stern reminder to employers not to force employees to utilise annual or unpaid leave for CNY closures. 

Also read: “We celebrate together” – Sarawak’s Oldest Mosque Welcomes CNY by Hanging Festive Red Lanterns