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2022 MarsdenLR 2819
FEDERAL COURT PUTRAJAYA
ISMAIL NASARUDDIN ABDUL WAHAB – Appellant
Versus
MALAYSIAN AIRLINE SYSTEM BHD – Respondent
[Civil Appeal No: 02(f)-43-07-2021(W)]
Trade union leaders cannot be dismissed for lawful activities unless the actions are malicious or recklessly false, reinforcing statutory protections under the Industrial Relations Act.
Headnote:(A) Industrial Relations Act 1967 – Sections 4(1), 5(1), and 59(1)(d) – Employment Act 1955 – Section 8 – Trade Union Act 1959 – Section 21 and 22 – Dismissal of trade union leader for issuing press statement concerning employee welfare is not justified as it relates to lawful trade union activities. Court emphasizes protection afforded by legislation for trade union members against dismissals for lawful activities. (Paras 10, 11, 12, 19, 54)
(B) Judicial Protections – Trade union members cannot be dismissed for participating in lawful union activities unless the conduct is malicious or recklessly false – The employer bears the burden of proof for just cause in dismissals. (Paras 10, 12, 21, 56)
(C) Victimisation – Misconduct charges related to trade union activities must consider the dual nature of the employee's role – Previous conduct of employee is relevant but should not negate lawful union activity protections. (Paras 12, 32, 60)
Facts of the case: The appellant, a union leader of the National Union of Flight Attendants Malaysia, was dismissed by MAS for misconduct arising from a press statement he issued advocating for crew welfare amidst complaints. The dismissal was challenged as unjustifiable given protective statutory frameworks. (Paras 4-8)
Findings of Court: The Court ruled that the dismissal for issuing the press statement was unjustified as it was connected to lawful union activity. The actions of the Union Leader did not constitute misconduct justifying dismissal. (Paras 11, 62)
Issues: The primary issues were whether the dismissal constituted victimisation for lawful union activities and whether procedural protections under relevant law were appropriately applied. (Paras 1-3)
Ratio Decidendi: The Court established that a union member's engagement in lawful activities should not incur dismissal unless the actions are recklessly false or malicious. The laws must be interpreted liberally to protect trade union activities. (Paras 1, 62)
Result: The Union Leader's dismissal was set aside, and the original decision by the Industrial Court was overturned.
Introduction
[1] This appeal is of critical importance to the trade union movement in the country. It examines the issue of the extent to which the nation's laws protect trade union activity. It also considers when activities of such a member or leader go beyond the ambit of acceptable limits as there is no complete immunity available in respect of trade union activities.
Background
[2] The respondent ('MAS') was the national carrier of Malaysia (now rebranded via another entity called Malaysia Airlines Berhad).
[3] The appellant was an employee of MAS for 25 years. At the material time, he was also the President of the National Union of Flight Attendants Malaysia (NUFAM). He will hereinafter be referred to as 'the Union Leader'.
[4] Sometime in 2013, the cabin crew employees of MAS were disgruntled and unhappy with MAS:
(i) Weight Loss Exercise, a company ruling mandating the reduction of weight to achieve a certain body mass index; and
(ii) Fleet Realignment Exercise ('FRE'), which severely affected many cabin crew's schedules and wages.
[5] NUFAM referred the FRE issue to the Director General of Industrial Relations as a trade dispute, pursuant to s 18 of the Industrial Relations Act 1967 .
[6] NUFAM and MAS failed to resolve the above issues. On 7 November 2013, the Union Leader issued a press statement in his capacity as NUFAM President where he highlighted inter alia the plight of overworked and underpaid cabin crew members, and urged MAS to enact policies to ensure their welfare and safety. In the course of doing so, the Union Leader called for the resignation of MAS' CEO as a result of the latter's inability to resolve the latter's inability to resolve the problems faced by the cabin crew under his leadership of MAS in 2011. The relevant excerpts of the impugned press statement, as reported by The Sun Daily on 8 November 2013, are as follows:
In a statement yesterday, Nufam Secretariat said it is calling on the Prime Minister to review Jauhari's contract and remove him as the CEO of MAS, which is a government appointed position, unhappy that there has been no changes in resolving the cabin crew's problems and they are have (sic) become demoralized
...
"Three years is long enough to observe how a CEO of a GLC (government-linked company) takes seriousness and consideration into the cabin crew's issues," it said.
...
"The management have cut costs drastically on the cabin crew and did not bother to review their allowances and salaries, " it further claimed.
...
"They (MAS management) said they had discussed with MASEU before putting these changes in to the CA (collective agreement), but the discussions are behind NUFAM's back,"
...
"It was not done in fairness and is a form of discrimination against employees. This is also the first time they are picking on this (weight control) issue,"...
...
"The crew are overworked according to schedules..."
...
"NUFAM wants the airline to straighten out their polices. All these policies concerning cabin crew must be regulated. The welfare and safety of the cabin crew must be looked into by the government," said Ismail.
[7] One day later, on 8 November 2013, the Union Leader was suspended. Subsequently, he was issued a show cause letter dated 12 November 2013 by MAS describing his press statement as "serious misconduct", tantamount to "a breach of the express terms of his employment" with MAS and further a breach of an implied term to serve MAS with "good faith and fidelity".
[8] On 29 November 2013, the Union Leader was dismissed by MAS for issuing the abovementioned press statement. He challenged his dismissal at the Industrial Court, which upheld his dismissal as being for just cause and excuse.
[9] In its award, the Industrial Court held that ss 4(1)1 and 5(1) of the Industrial Relations Act ( IRA ) 19672, which provisions protect against victimisation for trade union activity, were inapplicable to the instant case as the Union Leader was found guilty of the allegations o
