Ismail Nasaruddin bin Abdul Wahab v Malaysian Airline System Bhd [2022] 6 MLJ 418

Court: Federal Court (Putrajaya)

Judges: Nallini Pathmanathan, Hasnah Hashim & Harminder Singh FCJJ

Date of Judgement: 3 October 2022

Topic: Unfair Dismissal

2.     The Appellant was a cabin crew and an employee of the Respondent (‘MAS’) and at the same time the president of the National Union of Flight Attendants Malaysia (‘NUFAM’).

3.     In 2013, the cabin crew employees of MAS who were members of NUFAM were unhappy with certain rules implemented by MAS which as follows:

(a)  weight loss exercise, a company ruling mandating the reduction of weight to achieve a certain body mass index; and

(b)  fleet realignment exercise (‘FRE’), which severely affected many cabin crew’s schedules and wages.

4.     NUFAM did a complaint by referring a trade dispute with MAS over the matter to the Director-General of Industrial Relations but it did not succeed.

5.     Subsequently, the Appellant in his capacity as president of NUFAM issued a press statement in which he highlighted the cabin crew’s problems and called on MAS to take steps to ensure their welfare and safety.

6.     He also called upon the then Chief Executive Officer of MAS to resign for not doing the necessary to solve the cabin crew’s problems.

7.     Subsequent to the issuance of the press statement, the Appellant was suspended from work and then issued a show-cause letter stating that his issuance of the press statement was a ‘serious misconduct’ that breached the terms of his employment contract.

8.     The Appellant was subsequently dismissed from service. The Appellant challenged his dismissal before the Industrial Court (‘IC’) but his claim was dismissed.

9.     He, however, succeeded in his judicial review application before the High Court to quash the IC’s decision. The High Court held, inter alia, that-

(a)  The Appellant’s issuance of the press statement was not a misconduct warranting dismissal; and

(b)  the IC failed to properly consider and apply Section 4(1) and 5(1) of the Industrial Relations Act 1967 (‘the IRA’) which prohibited an employer from dismissing a workman for participating in a trade union activity.

10.  The Respondent however appealed to the Court of Appeal (‘COA’) which set aside the High Court’s decision and restored the findings of the IC.

11.  Dissatisfied with the decision, the Appellant made an appeal to the Federal Court.

Section 4(1) of the IRA:

No person shall interfere with, restrain or coerce a workman or an employer in the exercise of his rights to form and assist in the formation of and join a trade union and to participate in its lawful activities.

Section 5(1) of the IRA:

No employer or trade union of employers, and no person acting on behalf of an employer or such trade union shall—

(a)…

(b)…

(c) discriminate against any person in regard to employment, promotion, any condition of employment or working conditions on the ground that he is or is not a member or officer of a trade union;

(d) dismiss or threaten to dismiss a workman, injure or threaten to injure him in his employment or alter or threaten to alter his position to his prejudice by reason that the workman —

(i)  is or proposes to become, or seeks to persuade any other person to become, a member or officer of a trade union; or

(ii)  participates in the promotion, formation or activities of a trade union; or

…

(2) sub-section (1) shall not be deemed to preclude an employer from —

(a)  refusing to employ a person for proper cause, or not promoting a workman for proper cause or suspending, transferring, laying-off or discharging a workman for proper cause;

2.     Apart from Section 4 and 5 of the IRA, it is also instructive to refer to Section 59(1)(d) of the IRA which provides-

(1)  Subject to the provisions of sub-s 5(2), it shall be an offence to dismiss a workman or injure or threaten to injure him in his employment or alter or threaten to alter his position to his prejudice, by reason of the circumstances that the workman

…

(c)  being a member of a trade union which is seeking to improve working conditions, is dissatisfied with such working conditions;”   [Emphasis Added]

3.     The Federal Court also referred to Section 8 of the Employment Act 1955 (“Act 256”) where it enunciates-

“Nothing in any contract of service shall in any manner restrict the right of any employee—

(a)  to participate in the activities of a registered trade union, whether as an officer of such union or otherwise;”   [Emphasis Added]

4.     The Federal Court paused to note that under Section 20 of the IRA, the onus is on the employer to establish that the dismissal was with just cause and excuse. Thus, it is not for the workman to establish that the dismissal was unfair.

5.     The Federal Court in this case applied the test where the following considerations should assist both an employer and a workman in determining the issue as follows:

(a)  the alleged act of misconduct should be identified;

(b)  was the alleged act of misconduct related to a trade union activity?

(c)  was the alleged act of misconduct complained of by the employer closely connected with and carried out in the workman’s role as a union representative?

(d)  was the alleged act of misconduct while (stated to be) carried out by the workman, purportedly in the course of his activities as a union representative, knowingly or recklessly false, or tainted with malice, illegality and unreasonableness such that it could not reasonably be said to fall within the scope of bona fide trade union activity.

6.     An example of this would be the Malaysian case of Harris Solid State (M) Sdn Bhd & Ors v Bruno Gentil s/o Pereira & Ors [1996] 3 MLJ 489.   Harris is authority for the proposition that an employer may reorganise its commercial undertaking for any legitimate reason, such as promoting better economic viability, but it must not do so for a collateral purpose, for example, to victimise its employees for their legitimate participation in union activities.   The Court of Appeal held that on the issue of victimisation, the proper question that the employment tribunal should have asked was whether the totality of the evidence, objectively viewed, reasonably supported the conclusion that the claimants were terminated because of their union activities.

7.     The law governing unfair dismissals in the United Kingdom is not dissimilar to the position here. The Federal Court cited the case of Bass Taverns Ltd v Burgess [1995] IRLR 596 whereby an employee (a shop steward) was invited by the employer to give a presentation at an induction course for new employees in which they could be encouraged to join the union. During the presentation he made comments highly critical of the management’s attitude to health and safety which he later accepted were ‘over the top’. He was demoted. The employee claimed that his demotion constituted a constructive unfair dismissal for taking part in trade union activities.  The Court held that the employee’s admission that he had gone over the top could not support the conclusion that in law the contents of the speech were outside the scope of trade union activities.

8.     While in Morris v Metrolink RATP Dev Ltd [2018] EWCA CIV 1358, in which the claimant was dismissed for storing and circulating confidential information.  He challenged his dismissal as unfair, inter alia, under Section 152(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992 (‘the TULR’), because he had been dismissed for carrying out trade union activities.  The claimant argued that he had used the information not solely for his own benefit but as part of a collective grievance on his members’ behalf.

9.     Far from home, the Russian case named Ognevenko v Russia (Application No 44873/09), the Rosprofzhel Trade Union in Russia, of which the applicant train driver was a member, decided to a call a strike in April 2008 after the failure of wage and bonus negotiations.  The railway company did not apply to the courts to have the strike declared unlawful and the applicant took part in it.  The applicant arrived for work on the day of the strike, but refused to take up his duties.  The strike caused delays in the sector where the applicant worked and he was dismissed for disciplinary breaches, including taking part in the strike.  The Court held that such dismissal is not sufficiently justified and violated his rights.

10.  It is within Federal Court’s view that acts or omissions actuated by malice rather than a bona fide attempt to find a solution to a trade union issue would fall outside the scope of acceptable conduct and might well amount to a misconduct.

11.  The Federal Court held that the Court of Appeal had erred by dwelling only on the union leader’s obligations under his employment contract or collective bargaining agreement without giving his responsibilities as the President of NUFAM adequate consideration.  Similarly, the same Court of Appeal did not take into account whether the actions were in furtherance of trade union activities.

12.  The Federal Court then concluded that the union leader’s press statement’s contents were entirely related to issues of employees were having at work and criticism of management for not addressing them.

13.  Accordingly, the Federal Court has unanimously ruled that the union president should not misuse his position for personal gain. His press release was made on behalf of NUFAM and the thousands of cabin crew employees he represented in an effort to better working conditions.

14.  Considering all the facts, the Federal Court found that the union leader’s press statement constituted participation in the legal activities of a trade union and was not unreasonable, malicious, or knowingly or recklessly false.

15.  As for that, the Federal Court agreed with the High Court that the union leader’s conduct cannot be labelled as misconduct which warrants dismissal.

2.     The Appellant’s act of alleged misconduct which involves his engagement in trade union activities does not amount to misconduct warranting disciplinary action or dismissal.

2.     An employee ought not to be dismissed for participating in trade union activities carried out in his capacity as a trade union officer or member, unless those activities were extraneous to trade union affairs or were carried out maliciously or in a manner which knowingly or recklessly disregarded the truth.  This is a question of fact to be determined by the Court in each and every case.