Malaysia Airline System Bhd v Ismail Nasaruddin bin Abdul Wahab [2021] 4 MLJ 724

 

MALAYSIAN AIRLINE SYSTEM BHD v ISMAIL NASARUDDIN BIN ABDUL WAHAB [2021] 4 MLJ 724 

Court of Appeal

Unlawful dismissal

Facts

1.        This is an appeal case made from the High Court to the Court of Appeal.

2.     The Respondent was the President of the National Union of Flight Attendants Malaysia (‘NUFAM’) and consecutively was an employee of the Appellant’s airline company MAS.

3.     NUFAM is a union trade registered under Section 12 of the Trade Unions Act 1959 (Act 262) (‘TUA’).

 4.    Previously, the Respondent was dismissed from his employment on 29 January 2013, where he contended that he was dismissed without just cause and excuse due to his action by making a press statement voicing out his concerns over the plight of 3,500 cabin crew of MAS.  One of the press statement released by the respondent seeking the dismissal of the CEO of MAS.

5.  The Appellant contended that such action made by the Respondent was a breach of terms and conditions of employment, namely releasing press statement without prior consent of the Appellant who was the employer of the Respondent.

6.     The Respondent argued that his action for releasing the press statement was made in his capacity as the president of NUFAM.

7.     The Appellant dismissed the Respondent from his employment and due to his dismissal, the Respondent applied to the Industrial Court (‘IC’) declaring that his dismissal was contrary to Section 4 and 5(1) of the Industrial Relations Act 1967 (Act 177) (‘IRA’) and therefore he was unlawfully dismissed.

8.   The Industrial Court however dismissed the Respondent’s application where the Respondent then filed a judicial review application to the High Court and the application was allowed.

9.    This present appeal is made by the Appellant against the decision of the High Court.

Issue

1.       Whether the Respondent’s dismissal was lawful.

2.      Whether the dismissal violated Section 4 and 5(1)(d)(ii) of the IRA.

3.    Whether the respondent was immunised from dismissal pursuant to Section 22(1) of Act 262.

Ratios

1.     Before discussing the issue on dismissal, the Court of Appeal held that it is pertinent to discuss the status and the relationship between the Appellant and the Respondent.

2.     Firstly, the Respondent is the president of NUFAM which his position is not directly appointed by the trade union but via election or otherwise.  The Court of Appeal held that he is therefore not paid by NUFAM but by his employer which is MAS.  Therefore, the Respondent has dual role which is as the servant of his employer (MAS) and also as the official of NUFAM.

3.     The Court of Appeal cited Section 8 of the Employment Act 1955 (Act 265) which provides that the employees are not restricted to participate in a registered trade union.

4.     The Court of Appeal then cited Section 4(1) of the IRA which provides that it is unlawful for any parties to restrict or interfere with employee’s participation in trade union activities.

5.     The Court of Appeal referred to the Federal Court judgment in Harianto Effendy bin Zakaria & Ors v Mahkamah Perusahaan Malaysia & Anor and concluded the view that where there is a possibility that the conduct of an employee (regardless of their position as a trade union member) may constitute a gross misconduct and lead to disciplinary action including dismissal.

6.     In short, the law provides for the right of an employee to participate in the activities involving trade union but the rights provided are not absolute.  If the employee who is also a member of trade union is likely to tarnish the reputation of the employer, it may constitute a serious misconduct and may lead to a serious disciplinary action including dismissal.

7.     The Court of Appeal also referred to the Industrial Court’s view that the Respondent was aware of the fact that he is bound to prior consent of the Appellant before speaking to the media as provided under item 12 of the appellant’s Book of Discipline.  Therefore, the Respondent’s action of releasing a press statement without prior consent of the Appellant constitutes a misconduct.

8.     The Court of Appeal held that past misconduct of the employee should be a relevant consideration to determine the gravity of the punishment.  In the present case, the Court of Appeal held that the High Court had erred in considering the Respondent’s past record on making press statements without the Appellant’s consent as one of the relevant factor to determine the weight of the punishment.

9.     The Court of Appeal also raised the issue whether there is a trade dispute between NUFAM and the Appellant, in which the Court of Appeal ruled that the issue is within the ambit of Section 2 of the IRA.

10.  Section 2 of the IRA provides the definition of trade dispute as any dispute between an employer and his workmen which is connected to the employment or non-employment or the terms of employment of the workmen.

11.  Thus, the Court of Appeal held that there is indeed a trade dispute between NUFAM and the appellant. It is further held that where there is such trade dispute, the procedure of settlement of the dispute must be made in accordance to Section 18, 19 and 26 of the IRA.

12.  The Court of Appeal held that the respondent’s action of releasing the press statement seeking the dismissal of the CEO is not the right procedure to settle the disputes according to the IRA.  Therefore, such action is contrary to the IRA and amounts to misconduct which entitled to a dismissal.

Decision

1.     The Court of Appeal allowed the appeal and set aside the decision of the High Court.

2.     It was held that the Respondent’s action by making press statements without prior consent of the Appellant amounts to a gross misconduct as it tarnished the reputation of the employer and therefore his dismissal is lawful.

3.     The dismissal is made not in violation of Section 4 and 5 of the IRA as it was made accordingly, taking into consideration the past misconduct made by the Respondent as there was multiple press statements released by the Respondent without prior consent of the Appellant.

4.     The contract of employment between the parties (implied a duty of good faith) and thus the employee should not act in a manner which is likely to jeopardize the relationship of confidence and trust between the parties.

Key Take Away

1.     It is a trite law under Section 20(1) of the IRA that the Industrial Court has the authority to determine whether there is a misconduct and whether the misconduct constitutes just cause for dismissal.

2.     It is not an obligation of the High Court to interfere with the findings of the Industrial Court unless the findings are unreasonable that no reasonable man could reasonably arrive at such findings.

3.     In summary, the Court of Appeal ruled that to determine whether Section 4 and 5 of the IRA is applicable in the dismissal, the court must first and foremost determine the status and relationship of the employee and his position under the trade union.

4.     The law provided under Section 4 and 5 of the IRA vested the rights of an employee or workmen to participate in any trade union activities. However, there are limitations imposed as to not jeopardize or damage the reputation of the employer as the employee are bound to the contract of employment.

 

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