Mental Health as a Defence to Misconduct and Absenteeism: What Azizah Ahmad and Hafizah Jumat Tell Employers

Absenteeism and misconduct are among the most common grounds employers rely on for dismissal. But what happens when an employee explains their unauthorised leave, or their failure to attend work, by pointing to a mental health condition? Does citing depression, anxiety, or a psychiatric diagnosis excuse conduct that would otherwise be treated as a serious breach of the employment relationship, or does the employer's right to a reliable, present workforce still prevail? 

Two Malaysian decisions - Azizah Ahmad v Malayan Banking Berhad [2017] ILRU 0476 (Industrial Court) and Hafizah bt Jumat v The Malaysian Government & Ors [2022] MLJU 2910 (High Court, judicial review), both grapple with this question in the specific context of absenteeism, rather than mere performance decline. The two cases converge on a consistent theme: a mental health diagnosis is relevant context, but it does not automatically neutralise the consequences of prolonged or unauthorised absence. What matters is whether the condition is shown to have caused the absence in a way the employer could reasonably have accommodated, and whether the employer's decision-making process was itself fair and considered.

Brief Facts

Azizah Ahmad v Malayan Banking Berhad [2017] ILRU 0476

The Claimant joined Maybank as Head, Merchant Portfolio Management, subject to a probationary period. During probation, she was tasked with two key deliverables - neither of which showed meaningful progress. She subsequently went on continuous medical leave from October 2010 through to her termination in March 2011, accumulating 117 days of leave against a 15-day entitlement.

While on leave, she filed a lengthy grievance report alleging she had been overworked, under-resourced, and made a scapegoat. She relied on a doctor's referral letter stating she had "developed depression and anxiety panic attack aggravated by phone calls from office." The Bank issued a letter of non-confirmation at the end of her (extended) 9-month probation.

Hafizah bt Jumat v The Malaysian Government & Ors [2022] MLJU 2910

The Applicant was appointed Pengajar (Penolong Pegawai Kesihatan Persekitaran) in June 2015, subject to a probationary period later extended due to illness. Over the course of her employment she accumulated:

• 393 days of paid sick leave;

• 143 days recorded as absence without leave or permission ("Tidak Hadir Bertugas Tanpa Cuti atau Tanpa Kebenaran"); and

• 428 days of sick leave in total after her probation period technically expired.

She was diagnosed with Bipolar Mood Disorder Type II in 2018 and Schizoaffective Disorder in 2020, supported by medical reports from the employer's own government hospital. Her Head of Department declined to certify her for confirmation, citing unsatisfactory performance and conduct, and the Public Services Commission issued a show-cause letter followed by a termination effective 1 May 2021. In her reply to the show-cause letter, the Applicant openly attributed her shortcomings to her mental health condition.

The Court's Findings

Azizah Ahmad v Malayan Banking Berhad [2017] ILRU 0476

No causal link between diagnosis and the absence/conduct in question. The medical letter confirmed a diagnosis but did not establish that the workload itself had caused it. The Court noted that depression and anxiety can stem from many different causes, and concluded the Claimant was simply unable to cope with the demands of her role - not that the role had caused her illness.

Conduct and attitude examined alongside the medical evidence. The Court observed an "attitude problem," pointing to the sheer volume of grievances the Claimant filed while on medical leave as evidence she was inclined to blame others rather than engage constructively with feedback.

Formal warnings are not always mandatory. Given her seniority (Head of Division, with prior comparable experience), the Court held she did not need a formal written warning to understand her performance and attendance were matters of serious concern.

The employer's honest, reasonable belief is sufficient. For incapacity/incompetence-type dismissals, the Court confirmed the employer need only honestly believe, on reasonable grounds, that the employee is incapable - not prove incapacity as an objective medical fact.

Probationary status does not resolve in the employee's favour by default. The Court rejected the argument that she was deemed confirmed by the Bank's inaction, since the Bank had in fact issued its non-confirmation letter within the stipulated window.

Hafizah bt Jumat v The Malaysian Government & Ors [2022] MLJU 2910  

On the absence issue specifically, the Court held the explanation had been duly considered, not that it was accepted or rejected on the merits. The Court found: "The main reason put forward by the Applicant was her poor mental health condition which caused her to take long and frequent sick leave and not being able to carry out her duties satisfactorily. The Commission and the Head of Department had duly considered the reasons given by the Applicant in her reply to the show cause letter before the Commission terminated the Applicant's employment." The judicial review standard was satisfied by evidence of consideration, not by the Court independently weighing whether the illness genuinely excused the absence.

The employer is the best judge of fitness for the role - including mental fitness. The Head of Department's letter of 18 February 2021 stated the institute needed instructors who were competent and "sihat mental dan fizikal" (mentally and physically healthy) to train cadets. The Court held it was not for the judiciary to substitute its own assessment for the Head of Department's or the Commission's on this question.

Reasonable accommodation had, in fact, been offered along the way. The Court noted the institute had rearranged the Applicant's teaching schedule, assigned relief lecturers during her leave, and that a psychology officer had monitored sick officers including her - evidence weighed in the employer's favour as showing engagement rather than indifference toward her condition.

Absence without leave, as distinct from certified sick leave, remained part of the picture the employer was entitled to weigh. The 143 days recorded as unauthorised absence sat alongside, and was not judicially treated as automatically subsumed into, the 393 days of certified sick leave, even though both plausibly stemmed from the same underlying condition. The Court did not draw out this distinction explicitly, but its acceptance of the Head of Department's report, which listed the unauthorised-absence figure as a discrete ground alongside sick leave and low performance scores, indicates unauthorised absence was not treated as automatically protected simply because a psychiatric diagnosis was on the record.

Reading Two Cases Together: Mental Health, Absenteeism, and Misconduct

1. A diagnosis is a starting point, not a defence

   Employees relying on mental health conditions to explain poor performance must show the condition caused the specific conduct at issue, not merely that the condition exists. Employers should expect and can test for this causal link during any internal process.

2. Certified vs uncertified absence matters

   Hafizah is a useful counterpoint to cases dealing purely with performance decline: it involved a substantial volume of absence recorded as unauthorised (143 days), sitting alongside - but treated as a discrete figure from - 393 days of certified medical leave. Even though both plausibly stemmed from the same underlying condition, the employer's report listed them separately, and the Court did not treat the unauthorised portion as automatically excused simply because a psychiatric diagnosis was on file. Unexplained or unapproved absence can be weighed independently, even where the employee's broader medical history is not in dispute.

3. Employer inquiry and consideration is the standard

   Both cases show that what protects an employer is evidence that it engaged with the mental health explanation once raised: considering the medical reports, taking the explanation into account before deciding, and in Hafizah's case, offering accommodations along the way (schedule changes, relief cover, psychological support). Neither case required the employer to ultimately accept the explanation as sufficient. In Hafizah, the Court was explicit that its inquiry stopped at whether the explanation had been considered, not whether the Commission's conclusion on the merits was correct.

   
   

4. Employee conduct and engagement with the process still counts

   In Azizah, the Claimant's high volume of externally-blaming grievances, filed while on leave, weakened the credibility of her mental-health explanation in the Court's eyes. Attitude and engagement with the employer's process remain relevant even where a genuine diagnosis is on record.

5. The forum changes the test, not the underlying principle

   Azizah was decided under the Industrial Court's "just cause or excuse" standard for private-sector dismissal; Hafizah was a judicial review of a public-sector probation termination, decided on administrative-law grounds of legality, rationality, and procedural fairness. Despite the different legal tests, both forums arrived at the same practical outcome: deference to the employer's/Commission's assessment where a fair process was followed and the medical evidence did not establish causation between the illness and the specific misconduct or absence at issue.

Conclusion

Azizah Ahmad and Hafizah Jumat reflect a coherent judicial approach: Malaysian courts treat mental health conditions as legitimate and relevant context for absenteeism and underperformance, but not as an automatic shield against a properly evidenced, procedurally fair employment decision. The recurring evidentiary fault line in both cases is causation - whether the diagnosis is shown to explain the specific absence or misconduct relied upon, combined with the employer's demonstrated willingness to consider, and where appropriate accommodate, the employee's condition before acting. For HR practitioners, the lesson is to build a documented, good-faith process on both sides of that line: genuinely engaging with medical evidence when it is raised, while still holding employees to account for absence or conduct that the evidence does not, in fact, explain.