Case Background & Strategy

By Lawyer Bernice Ng

For many Malaysian employees, arriving a few minutes late or slipping out a few minutes before the end of a shift feels like a harmless routine. The Industrial Court sees it differently. Both are recognised forms of misconduct — and both have led to employees losing their jobs.

Late-Coming: Absence Without Leave

The Industrial Court has long treated habitual lateness as a species of absence without leave. The principle, established in Taipan Asia Travel (M) Sdn. Bhd. v. Thomas Chong Wei Meng [1996] 2 ILR 1974 and reaffirmed in numerous cases since, is straightforward: lateness is absence for the period between the time the employee is required to arrive and the time they actually do arrive. As a form of unauthorised absence, it is misconduct.

In Leo Burnett Advertising Sdn. Bhd. v. The Bee [2005] 1 ILR 141, the Court addressed two common defences head-on. First, that the employee was only late by a few minutes — the Court held this is irrelevant, especially after warnings. Second, that the employee always accomplished her work on time — the Court rejected this as well. The employer has the right to demand that the employee be present at the starting time. The misconduct becomes more serious when lateness is persistent.

Leaving Early: A Deliberate Breach

The same principle applies at the other end of the working day. Leaving work before the contracted end time without obtaining permission is also misconduct. In UEM Genisys Sdn. Bhd. v. Keith Douglas [2001] 1 ILR 747 and Tini Syeed Sultan v. Petroliam Nasional Berhad (Petronas) [2019] 4 ILR 268, the Court recognised that an employee who leaves early has made a conscious decision to stop working before they are entitled to do so. The Court in Tini Syeed Sultan described such conduct as showing “contempt of prevailing rules, disrespect of authority, indifference to work and a general affront to the management.”

Both forms of misconduct — arriving late and leaving early — share a common thread: the employee is not working during hours they are contractually required to work. Whether the missing time falls at the beginning or end of the shift, the breach is the same.

Two Cases That Show the Consequences

In Samuel Raj a/l Sivajothi v. Tungsten Network Sdn. Bhd. [2019] (Award No. 1738 of 2019), the employee committed both forms of misconduct. He arrived late on multiple occasions — by margins ranging from 11 minutes to 53 minutes. He also left work early on at least two documented occasions, departing at 12:45 AM when his shift ended at 1 AM, and at 12:52 PM when his shift ended at 1 PM. On top of that, he took extended lunch breaks well beyond the permitted one hour.

Despite receiving four written warning letters, multiple verbal warnings, counselling sessions, and show cause letters over a period of years, his behaviour did not change. When his team lead questioned him, he responded with “lol” over company messaging and trivialised the situation. When asked during the domestic inquiry what he had done to improve his ability to arrive on time, he replied “why should I?”

The Industrial Court upheld his dismissal, noting that the Company had been “over generous” in giving him opportunities to improve. The Court found that his conduct — the combination of habitual lateness, early departures, extended breaks, and unfitting behaviour — constituted just cause for dismissal.

In Mohamad Zaim bin Safaddin v. Smart Legacy Sdn. Bhd. [2024] (Award No. 909 of 2024), a probationary Operations Manager displayed the same pattern. Time attendance records showed he was late to work on 15 days in June 2022, 14 days in July, 23 days in August, and 11 days in September — sometimes arriving more than three hours after his scheduled start time. He also left work early on multiple occasions: 2 days in June, 3 days in July, and 4 days in August.

Despite three warning letters and weekly managerial meetings where his misconduct was raised, the Claimant’s only response was “Saya akan memperbaiki” (“I will improve”). He never did. The Court upheld his dismissal, noting that his conduct showed “a recalcitrant attitude” and that it was “certainly irresponsible” for someone in a managerial position.

Extended Breaks: The Third Dimension

Both cases also involved employees taking breaks longer than permitted — another form of unauthorised absence during working hours. In Jul Arshad v. Sabah Forest Industries Sdn. Bhd. [2006] 3 ILR 1689, the Court confirmed that taking extended breaks without the employer’s prior permission is misconduct warranting dismissal.

In Samuel Raj, the employee was specifically reminded that his lunch break was one hour. On 7 November 2017, his team lead allowed him to take lunch at a later time but made clear he needed to return within an hour. He returned one hour and forty minutes later. In Mohamad Zaim, the employee’s persistent absence from the food court he managed — arriving late, leaving early, and disappearing during shifts — directly compromised the Company’s operations.

As the Court stated in Aezrine Shah Abdullah v. Fat Boys Record Sdn. Bhd. [2017] 2 ILR 419: “A company would not be able to function smoothly and efficiently if all its employees come to work late or disregard the company’s regulations governing the working hours.”

Progressive Discipline: The Employer’s Roadmap

Both employers in these cases followed a clear progressive discipline process before terminating the employees. This was a significant factor in the Court upholding the dismissals.

For employers: Document every instance. Follow a progressive discipline process — verbal reminders, written warnings, counselling sessions, show cause letters. Do not tolerate persistent misconduct out of misplaced patience — the Court in Samuel Raj noted the Company was “over generous,” implying it could have acted sooner.

For both: Time management is a fundamental contractual obligation. The Industrial Court has made its position clear across decades of consistent case law. Coming late and leaving early are not grey areas. They are misconduct.

This article is for educational purposes only and does not constitute legal advice. For assistance with employment and industrial matters, Messrs Ng, Zainurul, Seke & Khoo has a dedicated and experienced team that can assist you with your legal needs.