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2025 MarsdenLR 6179
COURT OF APPEAL PUTRAJAYA
Azizul Azmi Adnan, J
DATUK ROGER TAN KOR MEE & ORS – Appellant
Versus
HAYATUNNISAH SULAIMAN – Respondent
[Civil Appeal No: W-01(A)-189-04-2022]
The dismissal of a senior director for unauthorized disclosure of confidential information was deemed appropriate due to the serious nature of the breach despite procedural concerns regarding natural justice.
Headnote:(A) Suruhanjaya Perkhidmatan Air Negara Act 2006 - Appeals concerning dismissals in statutory corporations - The decision to dismiss a senior director for unauthorized disclosure of confidential information was upheld as appropriate due to the nature of her role requiring utmost trust. The presence of an interested party in committee deliberations raised concerns of fairness but did not alter the correctness of the dismissal. Judicial review was not warranted under certiorari as the ultimate decision was found to be correct despite procedural impropriety. (Paras 12, 16, 30, 33)
(B) Natural Justice - The principle extends to the prohibition of any interested party's presence in decision-making proceedings to safeguard impartiality. (Paras 36, 37, 40)
Facts of the case:
The respondent was a senior director in a statutory corporation responsible for regulating water services. She was dismissed for disclosing confidential information without authorization and for conduct bringing the Commission into disrepute. Proceedings alleged breaches of natural justice due to the presence of an investigating officer at the Disciplinary Committee meeting. (Paras 3-10)
Findings of Court:
Despite potential procedural impropriety, the court confirmed that the dismissal was justified given the serious charges and the breach of trust inherent in the respondent's senior position. (Paras 16, 30-34)
Issues: Whether the procedural irregularities prejudiced the decision-making process and the appropriateness of the dismissal given the nature of the respondent's misconduct. (Paras 12, 30)
Ratio Decidendi: The decision to dismiss was reaffirmed as correct; procedural errors do not invalidate a decision yielding the right conclusion. Judicial discretion in reviewing decisions implies that correctness trumps the nature of the errors committed during proceedings. (Paras 30-34)
Result: Appeal allowed; cross-appeal dismissed.
| Table of Content |
|---|
| 1. dismissal based on unauthorized disclosures (Para 3 , 4 , 6 , 7 , 8 , 10) |
| 2. high court found breach of natural justice (Para 12 , 16) |
| 3. grounds of appeal and cross-appeal presented (Para 13 , 14) |
| 4. validity of affidavit authority issue (Para 19 , 20 , 21) |
| 5. standard for hearsay in affidavits (Para 22 , 24 , 25) |
| 6. disciplinary actions justified despite procedural impropriety (Para 29 , 30 , 32 , 34) |
| 7. final decision to dismiss affirmed (Para 36 , 37) |
Introduction
[1] This appeal relates to an application for judicial review commenced by the respondent in this case, Puan Hajah Hayatunnisah Sulaiman, who contended that (among others) she was unfairly dismissed by her employer. The High Court had allowed her application for judicial review. After hearing the appeal, we unanimously allowed the appellants' appeal.
[2] These grounds record the reasons for our decision and constitute the judgment of the Court.
Material Background Facts
[3] The respondent applicant was an employee of the 6th appellant, Suruhanjaya Perkhidmatan Air Negara (the "Commission"), a statutory corporation established under the Suruhanjaya Perkhidmatan Air Negara Act 2006 to regulate the water and sewage-related industries in Malaysia. She was dismissed. At the time of her dismissal, she was the senior director of the Legal Division in the Commission.
[4] Disciplinary proceedings were carried out against the respondent on four charges. They are summarised below:
(a) the respondent was charged with disclosing copies of legal opinions issued by the Legal Division of the Commission to Associate Professor Dr Rasyikah Md Khalid, a law lecturer in the law faculty of Universiti Kebangsaan Malaysia without the prior approval of the Commission. The disclosures were made for the purposes of a book entitled "Isu Perkhidmatan Pembekalan Air di Malaysia-Tafsiran di bawah Akta Industri Perkhidmatan Air 2006 dan Perundangan Subsidiari" (referred to here as the "second book"). The disclosures were said to have been made:
(i) at a meeting on 21 November 2016; and
(ii) via emails on 8 December 2016.
As we shall see, the date of the first disclosure will be significant.
(b) the respondent was charged with commencing publication works for a book entitled "Water Services Law and Landmark Cases" (referred to here as the "first book") without prior authorisation, and with requesting lists of cases decided under the State water enactments for the purposes of the first book from various water services operators without disclosing the purpose of such information request;
(c) the respondent was charged with making further unauthorised disclosures to Associate Professor Dr Mahmud Zuhdi Mohd Nor, with providing a referee's letter to him and with providing the log-in details for LawNet services to a third party. Among the documents said to have been disclosed to Dr Mahmud Zuhdi were:
(i) copies of papers tabled a meeting of the Commission and of its rules and procedures committee;
(ii) a copy of the Water Industry Performance Report 2014 (which was a document with restricted circulation);
(iii) a copy of the draft Water Services Industry (Bulk Water Supply Agreement) Rules 2015 prior to its publication in the Government gazette; and
(iv) copies of various draft contracts prepared by the Commission; and
(d) finally, the respondent was charged with bringing the Commission into disrepute by threatening her personal assistant and by her unprofessional conduct that had resulted in a high employee turnover rate in the Legal Division.
[5] It was an undisputed fact that the respondent had tabled her proposal for the second book at a management retreat of the Commission held between 23 and 25 November 2016.
[6] The four charges were set out in a show cause letter dated 30 May 20171. The respondent provided her responses to the charges by way of a letter dated 19 June 20172.
[7] The Disciplinary Committee convened a meeting on 26 June 2017 to deliberate on the case against the
