Existing law in Malaysia (Employment Act 1955)

S.60(2) The employer shall grant and the employee shall take such leave not later than
twelve months after the end of every twelve months continuous service and any employee
who fails to take such leave at the end of such period shall thereupon cease to be entitled
thereto;

Provided that an employee shall be entitled to payment in lieu of such annual leave if, at the
request of his employer, he agrees in writing not to avail himself of any or all of his annual
leave entitlement.

When can an employer forfeit the annual leave of an employee?

1. When the employee fails to consume his annual leave during the period of eligibility
(Section 60 E(2) )

2. When an employee who has been dismissed for misconduct after due inquiry and he
happens to have annual leave not yet taken {refer to Section 60(E)(3A)}. This option appears
to be quite well-used.

3. is See Section 60E(1) Last Para} where an employee "absents himself from work without
the permission of his employer and without reasonable excuse for more than ten percentum
of the working days during the twelve months of continuous service in respect of which his
entitle to such leave accrues....". Hey..... have any of you guys ever been so tolerant of an
employee who has been absent for more than 10% of the working days????

Case Law

Genting Bhd lwn Genting Bhd Employees Union :

Worker must be given freedom to plan and choose any given day to take annual leave ,
subjected to employment terms .

Metromix Sdn Bhd v Ismail:

Employer has the discretion to refuse an application of annual leave . It is prudent to get
permission from the employer that if permission yet to be given , the entitlement could not be
materialized.

Employers cannot force employees to take annual leave , agreement must be made between
both parties .

Right to Refuse Annual Leave under Australian law

Operational requirements

Likewise, consideration of the employers operational requirements is a reasonable factor in

refusing a request, particularly where the absence on annual leave of two employees
simultaneously will have a significant impact on the efficiency of the work group.
Company policy

A company policy on annual leave could identify the circumstances under which a request
for annual leave by an employee may be refused by the employer.

This may help alleviate any potential disputes with employees regarding the taking of
accrued annual leave.

SUGGESTIONS

When can paid annual leave be

taken?
Annual leave under the NES does not have to be taken
each year, as the entitlement can accumulate. It is up to
each employer and employee to agree on when and for
how long paid annual leave may be taken.
However, the employer must not unreasonably refuse an
employees request to take paid annual leave. There is no
maximum or minimum period of annual leave that may
be taken.
An employee is not on paid annual leave if the period
during which an employee takes paid annual leave:
includes a day or part-day that is a public holiday
includes a period of any other leave (other than
unpaid parental leave), or a period of absence from
employment due to community service leave.
In certain circumstances, an employer can direct an
employee to take annual leave. In order for an employer
to be able to do this, an award or agreement must include
terms that require an employee to take paid annual
leave, or allow the employee to be directed to take leave.
The requirement in the award or agreement must be
reasonable. Similarly, the NES allow an employer to require
an award or agreement-free employee to take a period of
annual leave, but only if the requirement is reasonable.

A requirement to take paid annual leave may be

reasonable if, for example:
the employee has accrued an excessive amount of
paid annual leave
the employers enterprise is being shut down for a
period (such as between Christmas and New Year).

In assessing reasonableness, the following factors are

relevant:
the needs of the employee and the employers
business
 any agreed arrangement with the employee
custom and practice of the business
timing of the direction or requirement to take leave
reasonableness of the period of notice given.
An award or agreement can include terms dealing with
the taking of paid annual leave. An employer and an
award or agreement-free employee may agree on when
and how paid annual leave may be taken.

Matters that could be either incorporated into an award or

agreement, or agreed upon, include:
that paid annual leave may be taken in advance of
accrual
that paid annual leave must be taken within a fixed
period of time after it is accrued
that a specified period of notice must be given before
taking paid annual leave

Shiftworkers should be granted right to annual leave based on the