Holiday & Leave

Unauthorised absence can lead to job loss

by Susana Ng, senior associate

Article exclusively contributed by Allen & Overy

Unauthorised absence not only impacts on productivity and efficiency, but also affects co-workers, who usually have to bear the extra workload, leading to low morale and resentment.

Some employers implement a policy stipulating that staff will be presumed to have resigned from their jobs if they remain absent without permission for more than a certain number of days. This approach has not yet been tested in a court of law.

In extreme cases, companies may take advantage of common law protection stating that absence without leave can be construed as employees repudiating their employment contracts. This then empowers employers to terminate employment.

Failure to return

The issue of unauthorised absence was examined in the case of Wu Lai Wah vs Winner Co (Garments) Ltd (1994). The facts of the matter were that Ms Wu, the employee in question, had been granted seven days' leave, but failed to return to work on the due date. Her supervisor tried to contact her by calling her home, but could not get hold of her.

Five days later, Ms Wu finally telephoned the office, asking for an extension of her leave without committing to a specific return date. Her supervisor denied the request, asking her to contact the factory manager. Ms Wu told the manager that she needed more time off as her grandmother, who lived on the mainland, was ill. The manager responded that because of her prolonged absence she would lose her long-service benefits and be treated as a newly joined employee when she returned to work.

Ms Wu interpreted this as a dismissal and took the matter to court, claiming wages in lieu of notice and long-service payment. Contesting the matter, her employer contended that it was justified in terminating her employment without notice under common law.

Repudiation of employment

The court ruled that employees have an implied contractual obligation to keep their employers fully informed if they plan to stay away from work, explaining the reasons for their absence and maintaining regular contact with their offices to ensure that their superiors have a full understanding of their situation.

Workers also have a duty to prove that they are not staying away from work as a result of deliberately withholding their labour.

The judge said although Ms Wu's situation deserved sympathy, she had been reticent and had not discharged her duty to her employer to explain her full circumstances and the reason for her absence, even though she had been given the opportunity to do so.

It was found that she had therefore wrongfully repudiated her employment contract. Since her employer had been entitled to accept her resignation, it was neither liable for wages in lieu of notice, nor for long-service payment.

In conclusion, if an employer dismisses a staff member for absence without leave, but the employee has duly informed the office of the reason for the absence and kept in regular contact with his superiors, the onus would be on the employer to prove that the dismissal was justified.

Q & A on summary dismissal
Q1 Can incidences of lateness constitute misconduct?
A1 Lateness is a form of unauthorised absence for the period between the time the employee was expected to arrive at work and the actual time of arrival. This can be seen as misconduct, irrespective of whether the employer's business has suffered as a result of the worker's lateness, as ruled in the case of Ying Kee Safes & Furniture Ltd vs Wong Yam Tak (1995).

Q2 Can persistent lateness lead to summary dismissal?
A2 While an isolated incident of lateness might not warrant dismissal, persistent and repeated lateness amounts to misconduct, particularly if the employee had previously been given a warning. The court found that such disregard of company rules was a deliberate flouting of the employer's authority.

The opinions expressed in this article are those of the contributor

Taken from Career Times 26 March 2010, B12

(Last review date: 23 August 2013)

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