Boss forced you to use annual leave on CNY or other public holidays? Why this is illegal & how to report them
Malaysia is well-known globally as a multiracial and multicultural country with diverse cultures, languages, religions and festivities. The sheer number of public holidays in a year for religious and cultural celebrations is a testament to this, with the most recent being the Chinese New Year.
One of the most important celebrations in Chinese culture, Chinese New Year, also known as the Lunar New Year, dates back some 3,500 years, with many unique traditions associated with it depending on the region. For example, the “Yee Sang” ceremony actually originated in Malaysia and is not performed in mainland China.
Given that the Chinese community makes up the second largest demographic in Malaysia, Chinese New Year has long been celebrated in our country and has actually been recognised as a public holiday since before Merdeka. Specifically, Chinese New Year was among the public holidays prescribed by the Holidays Ordinance 1951, which has since become the Holidays Act 1951 and is still in force today.
With that in mind, the recent CNY2025 celebration was somewhat marred recently by certain employers who forced their workers to take annual leave or unpaid leave directly before or after the public holiday because they are extending their business closure for the festive season. In fact, even the Ministry of Human Resources (KESUMA) had to issue a stern reminder that such an act is against the law.
So, what exactly do the employment laws in Malaysia say about this? How do employees report employers who do this to the authorities?
Well, for the Year of the Snake this CNY2025, join us as we slither our way to the relevant laws and regulations below.
Employees are entitled to paid holiday on public holidays
Of course, like other matters pertaining to employment in Malaysia, it is mostly governed under the Employment Act 1955. Speaking of which, do check out our article on the recent amendments to the Act here.
As for public holidays, Section 60D(1) of the Act prescribes that every employee is entitled to a paid holiday at their ordinary rate of pay on eleven of the gazetted public holidays, five of which would be:
1. Merdeka Day
2. The Birthday of the Yang di-Pertuan Agong
3. The Birthday of the Ruler or the Yang di-Pertua Negeri, as the case may be, of the State in which the employee wholly or mainly works under his contract of service, or the Federal Territory Day, if the employee wholly or mainly works in the Federal Territory
4. Labour Day
5. Malaysia Day
For reference, here’s the list of public holidays prescribed by the First Schedule of the Holidays Act 1951:
Besides that, an employee is also entitled to a paid holiday on any day appointed as a public holiday for that particular year under Section 8 of the Holidays Act 1951 below.
Section 60D(1) further prescribes that if any of the aforementioned public holidays fall on a rest day or any other public holiday, the working day immediately following the rest day or the other public holiday shall be a paid holiday in substitution of the first mentioned public holiday.
Subsection 1A added that if there is an agreement between an employer and an employee, any other day or days may be substituted for one or more of the remaining six gazetted public holidays mentioned above. This also applies to the day appointed as a public holiday under Section 8 of the Holidays Act 1951.
This means that for Chinese New Year, an employee is allowed to work on a public holiday if there is an agreement with their employer to substitute the leave with any other day as a paid holiday.
Besides that, Subsection 1B establishes that where any of the public holidays or any other day substituted therefor falls within the period during which an employee is on sick leave or annual leave to which the employee is entitled under this Act, or falls during the period of temporary disablement under the Workmen’s Compensation Act 1952, or under the Employees Social Security Act 1969, the employer shall grant another day as a paid holiday in substitution for such public holiday or the day substituted.
However, Subsection 2 asserts that any employee who’s absent from work on the working day immediately preceding or immediately succeeding a public holiday or two or more consecutive public holidays or any day or days substituted therefor under this section without the prior consent of his employer shall not be entitled to any holiday pay for such holiday or consecutive holidays unless they have a reasonable excuse for such absence.
Employers can’t force their employees to take annual leave or unpaid leave
Meanwhile, Section 60E(1) of the Employment Act 1955 prescribes that an employee shall be entitled to paid annual leave of:
- Eight days for every twelve months of continuous service with the same employer if they have been employed by that employer for a period of less than two years
- Twelve days for every twelve months of continuous service with the same employer if they have been employed by that employer for a period of two years or more but less than five years
- Sixteen days for every twelve months of continuous service with the same employer if they have been employed by that employer for a period of five years or more
Moreover, if the employee has not completed twelve months of continuous service with the same employer during the year in which their contract of service terminates, their entitlement to paid annual leave shall be in direct proportion to the number of completed months of service. Subsection 1A added that these paid annual leaves shall be in addition to rest days and paid holidays.
With that in mind, employers are not allowed to force an employee to go on annual leave on the employer’s own accord, as it’s the employee’s prerogative. In the case of Kesatuan Pekerja-Pekerja Continental Tyre Pj Malaysia Sdn Bhd v Continental Tyre Pj Malaysia [2015] 3 ILR 462, Continental compelled its employees to use their respective annual leaves during a plant shutdown but didn’t pay the workers their wages to go on leave. In other words, the company forced the workers to take unpaid leave.
The Industrial Court found that Continental had the right to shut down the plant but didn’t have the right to force its workers to take annual leaves during the shutdown. Continental was then ordered to either pay the workers for the days they had not been paid or grant them 2 days of annual leave from the date of the decision.
An employee can’t go on annual leave as they please
Conversely, an employee also can’t go on annual leave as they please, as established in the case of Pan Global Textiles Bhd. Pulau Pinang v. Ang Beng Teik [2002] 1 CLJ 181. The judgement reads,
“No employee can claim as a matter of right leave of absence without permission and when there might not be any permission for the same….. Hence, continued absence from work without permission will constitute misconduct justifying the discharge of a workman from service.“
Moreover, in the case of Puan Azinah binti Aziz v Overseas Assurance Corporation (Malaysia) Berhad [2006] ILJU 255, the Court found that although Puan Azinah has worked in the company for 20 years, the company has the right to dismiss her if she takes leave without approval from her boss, as taking a day off without consent is classified as a case of serious misconduct.
Hence, do note that employers have the right to reject leave applications for various reasons. Among others, they include if there’s insufficient notice, the application doesn’t comply with the company policy, other employees are going on leave during the same period, and there is urgent work that needs to be completed.
How to report your employer if they forced you to take annual leave
There are several different ways you can report your employers if they forced you to take annual leave or unpaid leave, including:
1. Write a complaint to the nearest Department of Labour (JTK) office. You can find the list of JTK offices and their addresses nationwide here.
2. Write a complaint via email to the JTKSM official email at jtksm@mohr.gov.my
3. Lodge a complaint online via the Public Complaint Management System SISPAA here
4. Walk-in to the nearest JTK office to lodge a complaint
5. Call 03-80008000
Here is the Information required when lodging a complaint:
- Complainant’s full information (Name, address, telephone number and email)
- Complained party’s full information (Name, address, telephone number and email)
- Issues of complaint
- Copy of relevant supporting documents such as letter of offer/employment contract and latest payslip
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