Back
2025 MarsdenLR 2934
HIGH COURT MALAYA IPOH
FARAH MASYITAH NORDIN – Appellant
Versus
TAN SRI DR MAZLAN YUSOFF & ORS – Respondent
[Application For Judicial Review No: AA-25-6-02/2024]
The dismissal of an employee was found unlawful due to excessive delay in disciplinary action, procedural unfairness, and failure to consider mitigating circumstances, rendering the punishment disproportionate.
Headnote:(A) Employment Law - Natural Justice - Proportionality - Disciplinary action against teacher for absenteeism - Delay of 7 years in initiating action deemed unreasonable and indicative of condonation - Failure to provide supporting evidence and reasons for dismissal constitutes a breach of natural justice - Dismissal found to be excessive and disproportionate. (Paras 23, 24, 33)
(B) Condonation - Conduct of employer during delay suggests implicit forgiveness of past absenteeism - Court affirms that prolonged inaction can amount to condonation. (Paras 25, 31)
Facts of the case:
The Applicant, a teacher, faced significant personal challenges leading to absenteeism over a period of 514 days. Despite this, she received promotions and awards until a sudden disciplinary action was taken 7 years later, resulting in her dismissal. (Paras 1-6)
Findings of Court:
The Court found the dismissal procedurally unfair due to excessive delay, failure to provide evidence, and lack of consideration for mitigating factors, ruling the dismissal unlawful. (Paras 23, 34)
Issues: The main issues included the fairness of the 7-year delay in disciplinary action, compliance with natural justice, and the proportionality of the dismissal. (Paras 7-8)
Ratio Decidendi: The Court ruled that the delay in disciplinary action and failure to provide supporting evidence violated natural justice, and the dismissal was disproportionate to the alleged misconduct, warranting its reversal. (Paras 24, 33)
Result: The dismissal is declared null and void, with orders for reinstatement and back pay. (Para 35)
Introduction
[1] For 7 years, the Respondents stood by in silence, taking no disciplinary action against the Applicant, a school teacher, despite being fully aware of her earlier absenteeism. During most of this time, the Applicant served with dedication, earning promotions, commendations, and even an excellence award while serving as a teacher in another school. However, when she was eventually issued a show cause letter and responded with remorse, seeking to explain her circumstances, the Respondents seized upon her apology as the basis to terminate her. This case examines whether Respondents' conduct of inaction, sudden punishment, and disregard for fairness, renders the dismissal unlawful, unfair, and legally unsustainable.
Background Facts
[2] The Applicant, Farah Masyitah Binti Nordin began her career as a Pegawai Perkhidmatan Pendidikan (DG41) ie a teacher at SMKA Sultan Azlan Shah (SMKA SAS) in July 2014 under the 2nd Respondent. Early in her career, she faced significant personal hardships, including financial struggles, family issues, and emotional distress following two miscarriages in 2013 and 2014. Her long daily commute from Bercham, Ipoh, to Seri Iskandar, where SMKA SAS was located, further impacted her health, leading to severe exhaustion and episodes of falling asleep while driving, all these affected her ability to attend work regularly. As a result, she was allegedly absent for 514 days between 19 January 2015 and 19 August 2016.
[3] Despite her challenges, she made efforts to return to work in August 2016 but continued to struggle with anxiety, fear, and lack of confidence. In January 2017, at her transfer request, she was transferred to SMK Aminuddin Baki ("SMK ABC"), where she regained stability and re-established herself as a dedicated and high-performing teacher. At SMK ABC, she consistently received outstanding performance ratings from 2017 to 2022, took on leadership roles, and actively contributed as a class teacher, exam supervisor, and student mentor. Her dedication was recognised with the Excellent Service Award (APC) in 2022. Throughout these years, she was never warned, reprimanded, or informed of any pending disciplinary action for her past absenteeism, and she was granted salary increments, promotions, and benefits, which reinforced her belief that her past absence had been excused or condoned.
[4] However, on 6 July 2023, she was suddenly issued a "show cause letter", alleging misconduct for her past absences from 2015 to 2016, and required her to respond within 21 days. In her written representation dated 20 July 2023, she explained her personal struggles, financial constraints, and family responsibilities, including caring for her critically ill younger brother who required lifelong dialysis treatment. Her current school principal supported her written representation, affirming her commitment and exemplary service.
[5] Despite her explanation, the 2nd Respondent upheld the charges, issuing a dismissal letter on 9 November 2023, stating that her written representation was insufficient. The dismissal was backdated to 27 October 2023, though she was only officially informed on 23 November 2023, which was her last day of service, according to the letter of termination. The Applicant argues that the 7 year delay in carrying out the disciplinary action violated natural justice, as she was allowed to work with a salary duly paid, promoted, and awarded for excellence without complaints for years She asserts that her termination was unfair and disproportionate, given the lack of prior warnings, failure to consider mitigating circumstances, and implied condonation of her past actions.
[6] The events, chronologically set out, are as follows:
a) 19 January 2015 to 19 August 2016 - Applicant's period of absenteeism from SMKA Sultan Azlan Shah (SMKA SAS).
b) January 2017 - The Applicant was transferred to SMK Aminuddin Baki (SMK ABC), marking a turning point in her career after earlier d
