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2023 MarsdenLR 1836
INDUSTRIAL COURT SARAWAK
AMIR HIRMAN SULAIMAN – Appellant
Versus
AIRASIA BERHAD – Respondent
Award No: 2363 Of 2023 [Case No: 8/4-1112/22]
The dismissal of an employee for refusing to comply with a lawful COVID-19 vaccination policy is justified if the employer proves just cause on the balance of probabilities.
Headnote:(A) Industrial Relations Act 1967 - Sections 20 and 30(5) - Dismissal of employee for refusal to comply with vaccination policy during COVID-19 pandemic - The Court found that the employer's health policy regarding vaccination was lawful and reasonable, justifying the dismissal of the employee for disobedience. (Paras 13, 16, 32, 36, 39)
(B) Burden of Proof - The employer bears the burden of proving that the dismissal was with just cause or excuse, which was established in this case. (Paras 16, 19)
(C) Standard of Proof - The standard required in dismissal cases is on the balance of probabilities, not beyond reasonable doubt. (Paras 17, 19)
Facts of the case:
The Claimant was dismissed by the Company for refusing to take a COVID-19 vaccine after multiple attempts by the employer to convince him. The dismissal occurred on 11 January 2022, following a series of Movement Control Orders.
Findings of Court:
The Company's dismissal of the Claimant was justified due to his refusal to comply with lawful orders regarding vaccinations, which were essential for his role.
Issues: Whether the Claimant's refusal to comply with the vaccination policy constituted just cause for dismissal.
Ratio Decidendi: The Court ruled that the Claimant's disobedience to the lawful order of vaccination was sufficient grounds for dismissal, affirming that the employer's policy was reasonable and necessary for workplace safety.
Result: Claimant's case dismissed.
| Table of Content |
|---|
| 1. dismissal details and claimant's employment history. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12) |
| 2. role of industrial court in dismissal cases. (Para 13 , 14 , 15 , 16) |
| 3. burden of proof lies with the employer. (Para 17 , 18 , 19) |
| 4. evidence regarding covid-19 vaccination requirements. (Para 20 , 21 , 22 , 23 , 24 , 25) |
| 5. employee's duty to comply with lawful orders. (Para 26 , 28 , 29 , 30) |
| 6. justification for dismissal based on disobedience. (Para 31 , 32 , 33 , 34 , 35 , 36) |
| 7. company's prerogative in operational adjustments. (Para 37 , 38) |
[1] This is an order of reference dated 13 July 2022 by the Director General of Industrial Relations Department pursuant to subsection 20(3) of the Industrial Relations Act 1967 arising out of the alleged dismissal of Amir Hirman Bin Sulaiman (the Claimant) by AirAsia Berhad (the Respondent) on 11 January 2022.
Brief Facts
[2] The Company is AirAsia Berhad, with a business address at LCC Terminal, Jalan KLIA S3, Southern Support Zone, KLIA, 64000 Sepang, Selangor Darul Ehsan.
[3] The Claimant commenced employment with the Company on 14 April 2012 as a Flight Attendant. At the time of dismissal, the Claimant's last drawn basic salary was RM1,500.00.
[4] On 18 March 2020, the country went into lockdown after implementing the Movement Control Order to flatten the curve and control the COVID-19 pandemic.
[5] Subsequently, a series of Movement Control Orders (MCO) was implemented from 2020 until 2021 with some restrictions. In February 2021, the Government began its COVID-19 vaccination programme in various phases to combat the ongoing pandemic.
[6] On 3 May 2021, the Company issued the Flight Operation Memo to all its pilots and cabin crews about the requirements of the COVID-19 vaccination to ensure non-disruption to flight operations.
[7] At first, the Claimant indicated his unwillingness to obtain the COVID-19 vaccine due to health and safety concerns.
[8] The Company made several attempts to convince the Claimant to undergo vaccination, but the Claimant maintained his position against the vaccine.
[9] On 3 November 2021, the Company issued a furlough letter, but the Claimant refused to.
[10] The Claimant was unable to be placed on the flying roster because the Claimant was still unvaccinated. The Company decided to place the Claimant on unpaid leave immediately until 31 December 2021.
[11] Vide a letter dated 7 January 2022, the Claimant sent another letter to the Company, maintaining his position not to be vaccinated.
[12] On 11 January 2022, the Company terminated the Claimant from the Company.
The Law
Roles And Functions Of The Industrial Court
[13] The role of the Industrial Court under s 20 of the Industrial Relations Act 1967 (Act 177) is briefly explained in the case Milan Auto Sdn Bhd v. Wong Seh Yen ; [1995] 4 CLJ 449; [1996] 1 AMR 049. His Lordship Justice Mohd Azmi bin Kamaruddin FCJ, in delivering the judgment of the Federal Court had the occasion to state the following:
"As pointed out by this Court recently in Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal ; [1995] 3 CLJ 344; [1995] 2 AMR 2145, the function of the Industrial Court in dismissal cases on a reference under s 20 is two-fold firstly, to determine whether the misconduct complained of by the employer has been established, and secondly whether the proven misconduct constitutes just cause or excuse for the dismissal. Failure to determine these issues on the merits would be a jurisdictional error...
[14] The above principle was further reiterated by the Court of Appeal in the case of K A Sanduran Nehru Ratnam v. I-Berhad [2006] 1 MELR 114; [2006] 1 MELR 74; [2006] 2 MLRA 467; [2006] 2 MLRA 778; [2007] 2 MLJ 430; [2007] 1 CLJ 347; [2007] 1 ILR 257, where His Lordship Justice Mohd Ghazali Yusoff JCA outlined the function of the Industrial Court as follows:
"[21] The learned judge of the High Court held that the Industrial Court had adopted and applied a wrong standard of proof in h
