Ever noticed employees frequently taking MCs on Fridays or Mondays, turning sick leave into long weekends? This pattern, known as malingering, can disrupt workplace productivity and trust. Here's how to spot the red flags and address the issue effectively.
Malingering at the Workplace It's incredibly frustrating for employers to deal with employees who frequently take medical leave, knowingly it’s a disguise for an additional “day off”. These employees often call in sick on specific days like Fridays or Mondays (to enjoy a longer weekend) or when their annual leave applications are rejected. While they produce legitimate Medical Certificates (MCs) from certified medical practitioners, their frequent “planned” absences raise doubts about the genuineness of their illness. This puts employers in a challenging position, unsure if they can take disciplinary action against these employees. This type of behavior is known as “malingering” and is a known misconduct in the industrial practice. Malingering occurs when an employee feigns illness or injury to avoid work. Such actions undermine the trust and confidence between the employer and employee, as both parties are expected to act honestly and dutifully in their employment.
What does decided case laws say about malingering? In the case of Ambank Berhad v Rasidah Othman, the employee was dismissed by the Company after being spotted shopping at KOMTAR shopping complex while on medical leave. The Company argued that this wasn't the first time she had been seen out-and-about while claiming to be ill. Moreover, the Company was able to prove the employee pre-planning her medical leaves for personal convenience eg the employee prompted a colleague that she will be on sick leave one month before the actual date. The Industrial Court, considering the balance of probabilities, found the employee guilty of malingering and upheld the dismissal.
In another case, Maju Holdings Sdn Bhd v Nor Ashika Mahamed Dom, an employee on MC travelled from Malacca to Kuala Lumpur to Shah Alam, and back, contradicting the assumption that she was unfit for work. The Industrial Court held that the employee abused her medical leave entitlements and, given the extent of her travel distance (over 350 km), upheld the dismissal.
In a more recent case, Dalia Ash’ari v Malaysia Airports (Niaga) Sdn Bhd, the employee was dismissed by the Company after she had admitted of travelling to Thailand for a family vacation while on medical leave. She had taken medical leave after her annual leave application was rejected by the Company. The Industrial Court upheld the dismissal.
These cases illustrate that the Industrial Court views malingering as serious misconduct. More so with reasons to believe that the employee is guilty of malingering. It is crucial to rely on the test of balance of probabilities in establishing the employee’s action of malingering to justify a disciplinary punishment.
Malingering be difficult to prove. Employers must present sufficient evidence to demonstrate that the employee intentionally feigned illness and misused medical leave for personal gain. While a Medical Certificate (MC) is generally considered proof of illness, without strong evidence, the company may face legal repercussions.
If you suspect that your employees are prone to malingering, consider these strategies to mitigate the issue:
Create a comprehensive timeline. Document the specific dates and reasons (type of illness) for each instance of medical leave. This will help establish the reasonableness of the leave duration and identify any patterns.
Establish a panel clinic system. Designate a list of approved clinics for outpatient visits. This allows for better monitoring and investigation of any suspicious claims.
Monitor social media activity for cases under investigation (ie those with suspicions). Keep an eye on employees' social media posts to identify any inconsistencies between their claimed illness and their online activities.
Remember, each case is unique. It's crucial to build a strong foundation of evidence (Balance of probabilities) before initiating disciplinary action. If you need further guidance on handling malingering, don't hesitate to consult with Eden Consultants for expert advice.
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