With Hari Raya Aidilfitri just around the corner, many Malaysians are preparing for the balik kampung exodus to celebrate with their families. With the Ministry of Education (MOE) announcing an extra day off on 18 March, for up to 12 days of school holiday when the Term 1 break is taken into account, we can definitely expect working parents to take extended annual leave to bask in the festivities.
However, before you take your extended leave and head off to your hometown, there is one crucial thing you should be aware of. If your employer instructs you to take annual leave or unpaid leave because the company is closing for an extended period during the Hari Raya festivities, know that this is against the law in our country.
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Employers can’t force workers 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.
An employee can’t go on annual leave as they please
Conversely, 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.
The judgment notably reads:
“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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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:
- Write a complaint to the nearest Department of Labour (JTK) office. You can find the list of JTK offices and their addresses nationwide here
- Write a complaint via email to the JTKSM official email at ym.vog.rhom@msktj
- Lodge a complaint online via the Public Complaint Management System SISPAA here
- Walk into the nearest JTK office to lodge a complaint
- Call 03-80008000
- 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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Stay tuned to WORLD OF BUZZ for more insights such as this!
Also read: LHDN Allows M’sians to ‘Pay Later’ Income Tax in Instalments of Up to 6 Months This Raya, Here’s How
