What should you do if an employee goes ‘missing in action’? HRD talks to one of Singapore’s top employment lawyers about the legal risks of terminating absent workers.
The Employment Act states that companies can terminate employment if their employees go ‘missing in action’ for a continuous period exceeding two days.
After two days with no prior leave, reasonable excuse or any attempts to inform an employer, they are deemed to have broken their contract of service.
However, a leading Singapore employment lawyer says companies should adopt best practice, in case employees do attempt to rebut their dismissal.
“Ideally, the employment contract would have provided for immediate dismissal if the employee is MIA without prior notification, for a period exceeding two days,” Braddell Brothers partner and disputes specialist Elaine Seow says.
“This is a good practice to adopt, especially since the Singapore Employment Act - which only applies to specific groups of employees - provides for such a scenario of an absent employee,” she told HRD Singapore.
Companies without a contractual recourse would usually assess their risk appetite and, if erring on the side of caution, utilise a few measures.
“First, they can take reasonable steps to contact the absent employee, by phone, emails and calls and keep a record of such efforts,” Seow explains.
“Secondly, if the contract provides for a short notice period, they can give such notice accordingly, to terminate without cause. At the same time, building up a case for a counterclaim, citing the periods of absence.”
Applying the principles provided by the two-day MIA provision in the Employment Act, Seow said that a termination can also be issued immediately following to see if the employee turns up to dispute the termination.
“Sometimes an employee may have been so seriously ill that there was no news from or of the employee,” Seow said.
“An overall balance is to determine if this is a recalcitrant employee or perhaps a genuine case of absenteeism due to unforeseen circumstances.”
Employers can send a termination notice stating the reason for the termination by registered post and mail to the last known address of the employee as stated in the employment contract and ensure all unpaid salary and benefits are paid.
However, Seow said HR teams should always be prepared for a potential visit.
“As a matter of internal standard operating procedures, be prepared for employee to turn up and or rebut the termination,” she said.
Employees covered by the Act can lodge a complaint against the employer with the Ministry of Manpower, potentially for alleged unfair or wrongful dismissal. Others may seek a civil remedy via the Singapore courts.
Seow said that employers should always prepare themselves in advance for any outcome that may result in a dispute of the termination.
“Employers should have a record of documentation leading to the termination, including the fact and period(s) of absenteeism. Some employers may also wish to collate information and facts of other breaches, and/or calculate their losses resulting from the absenteeism,” she says.
Seow said each and every case requires a different view or strategy depending on the industry and the position or role of the employee, so HR teams should seek proper legal advice on any matters of employee termination.