Amm Mashor Mahfiz bin Abdul Wahab v Malaysia Airlines Berhad [2022] 1 ILJ 22

AMM MASHOR MAHFIZ BIN ABDUL WAHAB v MALAYSIA AIRLINES BHD [2022] 1 ILJ 22

Industrial Court Kuala Lumpur

Unfair dismissal

2.     The Claimant was offered employment as Cabin Crew from MAS by letter of appointment dated 27 May 2015.

3.     Later in 2018, a show cause letter was issued to the Claimant due to an alleged misconduct.

4.     MAS alleged that the Claimant had posted MAS’s Company official poster without proper authorization using his Facebook Account by the name of ‘Ben  A Wahab’.

5.     The reply to the allegation was made by the Claimant but his explanation was not accepted and a domestic enquiry (D1) was held.

6.     On 24 April 2019, the Claimant was dismissed by MAS but the Claimant further denied the allegation and believed that his dismissal was more due to his active role and position in National Union of Flight Attendant Malaysia (“NUFAM”).

7.     The Claimant’s contention was that MAS has acted biasedly against him since he was NUFAM officer in which MAS has ongoing issues and disputes and as for that, MAS had acted unreasonably and terminated his service without conducting a thorough investigation.

8.     Therefore, the Claimant claims that his termination was unjust and it was an unfair labour practice.

“(i) MAB – Employee Handbook (clause 9.3) IT & Social Media Policies
The employees of the company shall not: –

Publish or write any book, article or work based on official information without the permission of the Company

·       Make any public statement, orally or in writing on the policies or decisions of the Company except with the permission of the Company

·       Act as editor or take part directly or indirectly in the management of or in the publication of any newspaper, magazines or journal without the consent of the Company

·       Act as editor or take part directly or indirectly in the management of or in the publication of any newspaper, magazines or journal without the consent of the Company”.

2.     It is trite law that if a company terminates an employee, the termination must be with just cause or an excuse that can be established on the balance of probabilities that the Claimant committed a serious misconduct that justifies his dismissal.

3.     The Court found that there was no negative posting/statement, neither anything that could be construed as ‘risky’ to the MAS’s branding in inviting its viewers to NUFAM’s annual dinner, which was a registered union that represented cabin crews.

4.     Thus, this Court was of the opinion that, while the act of posting was unauthorised and might be deemed to be in violation of the MAS’s IT policy, thereto was the misconduct merits  serious enough to cause a dismissal?

5.     For the definition of misconduct, the Court referred to the case of Tan Poh Thiam v Industrial Court of Malaysia and Daily Fresh Foods Sdn Bhd [1997] 1 MLJ 45 which quoted a book, The Law Lexicon by P Ramantha Aiyar (Reprint 1992)-

“The term ‘misconduct’ implies as wrongful intention and not a mere error of judgment. Misconductis not necessarily the same thing as conduct involving moral turpitude”.

6.     Despite the fact that the Court agreed with MAS that the Claimant posted an unauthorised image of the Company, it was found that the dismissal was not made in ‘good faith without caprice or discrimination, and without motive of victimisation or intimidation, or resorting to unfair labour practises’.

7.     The Court then referred to section 30(5) of the Industrial Relations Act 1967 (“Act 177”) provides-

 “The Court shall act according to equity, good     conscience   and the substantial merits of the case without regard to   technicalities and legal form”.

Therefore, the Court ruled that MAS had failed to prove just cause to terminate the Claimant as the act of posting the image was not sufficient to warrant a dismissal.

2.     Accordingly, the Claimant was awarded with back wages amounting to RM49,920.00 for the dismissal.

3.     However considering the Claimant’s contributing conduct, the monetary award given for the back wages was rescaled downward to RM29,952.00

4.     The final order of the Court is that, the Court allowed the claim and a sum of RM36,192.00 was awarded to the Claimant in lieu of the compensation and back wages.

2.     The Industrial Court has the jurisdiction in deciding the quantum of punishment imposed by an employer against his employee.  Before dismissing any employee, the employer should examine whether a less severe punishment would be adequate.