Teacher Being Absent For 1535 Days, What Does The Employment Act Say?

On the 16th of December 2012, the life of Yahaya Wahi as a teacher was altered forever as he accepted a transfer to SK RPS Kemar, a school located in the rural parts of inner Gerik.

However, even though he accepted the transfer, he only reported to the school for his first day of work on 3rd of April, 2013.

What happened? Yahaya discovered that in order to get to the school, he has to travel by boat to cross a lake. In normal circumstances, for other teachers, this might be an inconvenience, sure. But not really something to be fussed about.

But for Yahaya, this was a major problem because he has been diagnosed with severe hydrophobia, due to a childhood near-drowning incident and further exacerbated by seeing his elder brother’s death by drowning.

Due to this, Yahaya was absent from work for a whopping 1535 days which means that Yahaya was absent for four years two months from work out of five years he was assigned to this school. This resulted in him being dismissed from his position as a school teacher, and the start of a lengthy court battle.

Dismissed, reinstated, but pending appeal

Earlier this week, Yahaya’s long quest for justice was rewarded with a ruling by the  Taiping High Court for him to be reinstated to his teaching post.

“It is apparent that a fair and just process was not undertaken by respondents when they arrived at their decision to terminate Yahaya from the teaching service, (as) his absence at work was only due to dire medical reasons.

“To crown things, Yahaya was not informed of his right to appeal to a Disciplinary Appeal Board and no reasons were rendered by the respondents for his failure to do so.

“Thus, without the right to appeal afforded to Yahaya, an inbuilt mechanism available to him, the decision made by respondents to terminate his teaching service is invalid,” the presiding judge statement had highlighted that the teacher was not accorded his rights, as reported by New Straits Times.

However, it is too soon to celebrate.   The Attorney-General’s Chambers is now appealing  the Taiping High Court decision and the case will only be heard on August 28, 2023.

What are your rights?

Yahaya’s reinstatement as a school teacher was made possible due to the fact that teachers are considered civil service employees, which are under the jurisdiction of the Public Service Department (JPA). As such, his employer is bound by the procedures of the JPA when attempting to dismiss an employee; something that they neglected to follow in this instance.

According to JPA’s website, there is a flow chart of actions to be taken in the case of a civil service employee not reporting for work for seven consecutive days.

As you can see from this flowchart from JPA for civil service employees, the action that needs to be taken  are clear. In the case of absence of 7 or more consecutive days, the employee needs to be served with a ‘report for duty’ letter first. Further action will be determined if the letter was handed over to the employee or not.

If the letter is successfully served, then disciplinary action will be taken. If the letter is not successfully served, then the case will be brought upon the Disciplinary Board, who has the power to serve the employee with a dismissal or a demotion. Once the disciplinary board decides what disciplinary action to be taken on the employee, they will prepare and publish a newspaper notice. After seven days of publishing the notice, further action depends if the employee decides to report for work within these seven days.

If the employee reports to work within these seven days, then disciplinary action will be taken on him. If the employee doesn’t report to work however, the employee will be treated as being dismissed from his employment, and another notice will be published.

What are your rights under the Employment Act 1955?

For private sector employees however, being absent from work is governed by the laws set out in Section 15(2) of the Employment Act 1955.

Private sector employees are bound by the Employment Act 1955, which states that an employee must seek permission from an employer to take annual leave and must provide reasonable justification for being absent from work for more than TWO consecutive working days.

The important point here is permission is still needed from the employer and the employer must provide a valid reason that can be justified or proven.

So if the teacher had been a private sector employee, a medical report issued by a hospital or specialist doctor would be required to prove his case along with a proper documented history of having reported the medical condition to the employer and applying for leave according to the company’s regulations.

As for the number of days for leave which an employee is allowed as provided in the Employment Act 1955 is as follows:

Annual leave

• Worked less than 2 years – 8 days per year
• Worked less than 5 years – 12 days per year
• Worked less than 5 years – 16 days per year

Sick/Medical leave

• Worked less than 2 years – 14 days per year
• Worked less than 5 years – 18 days per year
• Worked less than 5 years – 22 days per year

However, most companies provide more than what is stated in the Employment Act to attract talent.

Generally medical leave for the private sector can only extend up to 60 or even 90 days at most. For longer periods, the employee would most likely be required to take unpaid leave.