Ignoring After-Hours Messages Is Not Automatically Poor Performance in Malaysia

About this guide: This explainer uses an incident reported on 2026-03-09 as a starting point. The legal rules below are general; they do not decide anyone's guilt, liability or individual case.

Decision tree with sample wording

After-hours message response decision tree

1. Is there an immediate safety, security, customer or operational risk? If yes, acknowledge the message and follow the documented escalation duty you actually hold.
2. Are you rostered on call or does your written role clearly require availability now? If yes, respond under that arrangement and record the time worked and instruction received.
3. If the request can wait, use: “I have seen this. I am offline now and will handle it by [realistic time] tomorrow. Please call if this is an urgent incident under our on-call process.”
4. If urgency is unclear, ask: “What is the deadline, operational impact and on-call procedure for this request?” Keep the answer with the original message.
5. If a warning or show-cause letter arrives, reply charge by charge with dates, job scope, rosters, prior responses and the exact tasks completed; do not answer only with a general complaint about work-life balance.

What happened

A project manager was dismissed in October 2019 after her employer accused her of poor performance through seven broad charges. One charge alleged that she was unwilling to respond or revert on urgent official matters after office hours. She denied that allegation and produced examples showing that she had responded when necessary. The Industrial Court heard the matter under section 20 of the Industrial Relations Act 1967 and handed down Award No. 428 of 2026 on 9 March 2026.

The Court found that the employer had not proved its poor-performance case on a balance of probabilities. For the after-hours charge, it identified three gaps: no specific incidents were given, no defined duty to respond beyond working hours was established, and no justification showed that the supposed urgent matters could not reasonably wait. The Court held that the dismissal was without just cause or excuse and ordered RM259,900 in back wages and compensation in lieu of reinstatement, less any statutory deductions.

The legal insight: what law applies

The award does not create a free-standing statute called the right to disconnect. The Court used that phrase to describe a reasonable boundary between work and personal time. Its legal task was narrower: decide whether this employer proved the particular poor-performance allegations and whether dismissal was justified. That distinction matters because an Industrial Court award turns on the pleaded charge, evidence, contract, job scope and facts before it.

Poor performance needs particulars. The award says a serious allegation affecting professional standing should be specific, tied to a clearly defined job scope and supported by evidence of actual failure. An employer relying on after-hours silence should identify the message, date, sender, required response, deadline, operational consequence, applicable policy and why the task could not wait. A description such as 'not committed' or 'often unreachable' may be too vague to let an employee answer fairly.

The defined role also matters. A hospital technician rostered on call, an incident responder carrying a duty phone and an office employee with no after-hours arrangement do not begin from identical facts. Contracts, collective agreements, rosters and consistently communicated policies may establish real responsibilities. Even then, the employer should distinguish a missed duty from ordinary dissatisfaction and choose the correct disciplinary allegation rather than relabelling every conflict as poor performance.

Urgency must be more than a word added to a message. The award asked whether the matters could reasonably have been addressed during office hours. In practice, an employer should have an escalation path that identifies who is on call, what counts as urgent, how contact is made and what happens if the first person does not answer. An employee who receives an ambiguous late message can ask for the deadline and impact instead of assuming it is either an emergency or safely ignored.

The case also shows why process and substance should be kept separate. The Court criticised the lack of particulars and the way the employer handled its internal meeting, but it also stated that a defective or absent domestic inquiry does not automatically decide the dismissal. An employer may still try to prove just cause before the Industrial Court. Employees should therefore answer the actual allegations with documents, not rely only on a procedural objection.

How does this impact me?

For an employee, avoid turning the award into a one-line refusal. Check your contract, handbook, roster and past written instructions. If you are not on call and the request can wait, a short acknowledgement with a realistic response time creates a better record than silence. If you cannot respond because of rest, caregiving, illness, poor connectivity or another reason, state what is necessary without disclosing excessive private detail.

For an employer, define availability before there is a dispute. Identify on-call roles, compensation or time-recording arrangements, emergency categories, escalation contacts and expected response windows. Train managers not to mark every late-night message 'urgent'. If performance is genuinely deficient, use measurable duties, examples, support and a fair opportunity to improve rather than mixing attitude, insubordination and performance into one vague charge.

If discipline starts, preserve the complete conversation rather than isolated screenshots. Keep timestamps, earlier instructions, the employee's role, roster, acknowledgements, completed work and any stated urgency. A show-cause response should deal with each allegation separately. If dismissal is threatened or has occurred, obtain employment-law advice quickly because statutory representation routes have strict time limits.

What this incident teaches us

The practical lesson is not that every worker may switch off without consequence. It is that availability must be grounded in the role and the event. Clear on-call design protects the business during a real incident while giving everyone else a predictable boundary.

The evidential lesson is equally simple: specific records beat adjectives. A message, roster, deadline and documented impact can be assessed. Labels such as uncooperative, unresponsive or poor performer do not prove themselves, especially when the employee has records of completing the work.

The verdict

Award No. 428 of 2026 is a strong caution against disciplining a Malaysian employee for vague after-hours expectations. It is not a universal licence to ignore genuine duties. Workers should clarify and document; employers should define on-call obligations, prove urgency and frame any charge precisely before treating a missed message as grounds for dismissal.

What can I do if this happens to me?

• Read your contract, handbook, roster and collective agreement for any express on-call, standby, emergency or after-hours communication duty.
• Save the complete message thread with timestamps, sender, requested task, deadline, stated urgency and your acknowledgement or completed response.
• When a non-urgent request arrives, give a short realistic response time and ask the sender to use the formal escalation route if the issue is genuinely urgent.
• If you manage staff, publish an on-call roster and define emergency categories, response windows, backup contacts and time-recording or compensation arrangements.
• Answer any warning or show-cause letter allegation by allegation with the job scope, relevant records and a factual chronology rather than a blanket denial.
• Get prompt employment-law advice if a warning threatens dismissal or employment has ended, and bring the contract, policies, messages and termination documents.