Breach of Contract

A. Breach of Contract By Employer
Employment Act 1955 Section 15 (1)
“An employer shall be deemed to have broken his contract of service with the employee if he fails to pay wages in accordance with Part III.”

MAIN POINT TO TAKE NOTE
“Fails to pay wages in accordance with Part III”

Employment Act 1955 Part III: Payment of Wages
Employment Act 1955 Section 18(1) Wages Period

A contract of service shall specify a wage period not exceeding one month.

Employment Act 1955 Section 19(1) Time of payment of wages
every employer shall pay to each of his employees not later than the seventh day after the last day of any wage period the wages, less lawful deductions earned by such employee during such wage period.

B. Breach of Contract By Employee
Employment Act 1955 Section 15 (2)

“An employee shall be deemed to have broken his contract of service with the employer if he has been continuously absent from work for more than two consecutive working days without prior leave from his employer, unless he has a reasonable excuse for such absence and has informed or attempted to inform his employer of such excuse prior to or at the earliest opportunity during such absence.”

MAIN POINT TO TAKE NOTE
01. Continuosly Absent from Work

• The absent must be continuous
• No break in between

02. More than two consecutive working days

• The absent must be more than two days, not only two days
• The absent days must be one after the others, no break in between
• The absents days must be the employee’s working day

03. Without Prior Leave

• The absent days must be the date(s) which employee did not apply leave in advance and approved by his Superior

04. Reasonable Excuse

• The employee must be able to explain with valid reason for such absent

The employee must be able to provide evidence or supporting document to proof of such absent

05. Inform or Attempted to inform

• The employee must be able to provide proof of he had informed or had attempted to inform the company for such absent

06. Prior to or at the earliest opportunity

• The employee must be able to provide proof of he had informed or had attempted to inform the company at the earliest opportunity during his absent period

The employer can request employee to submit evidence and explanation on his absence.

The employer has to investigate if employee’s absent has fulfill ALL 6 criterias as mentioned in Employment Act before can conclude whether the employee had breach of contract.

How to Determine the Absent Days
An employee is working 5 days week, Saturday is off day & Sunday is rest day
The attendance record as following :

Finding:

• The employee was absent continuously for two days only.
• He is not Breach of Contract under EA S 15 (2)

An employee is working 5 days week, Saturday is off day & Sunday is rest day
The attendance record as following :

Finding:
The employee was absent continuously for more than two working days, i.e. 12/6, 13/6 & 17/6
Employer must carry investigation to determine whether employee has fulfill the rest of criteria under EA S 15(2) before action can be taken against the employee under breach of contract.