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2025 MarsdenLR 4447
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 an employee for unauthorized disclosure of confidential information is justified if it breaches statutory obligations, even if procedural improprieties exist in the disciplinary process.
Headnote:(A) Suruhanjaya Perkhidmatan Air Negara Act 2006 - Judicial review - Dismissal of employee - The respondent was dismissed for disclosing confidential information without authorization, breaching the statutory obligation of secrecy - The High Court quashed the dismissal due to procedural impropriety - The Court of Appeal found the dismissal appropriate given the seriousness of the breaches and allowed the appeal, dismissing the cross appeal. (Paras 12, 16, 34, 37)
(B) Natural Justice - The principle of nemo judex in causa sua - The presence of an investigating officer at the Disciplinary Committee proceedings raised concerns about impartiality, yet the ultimate decision was deemed correct despite procedural flaws. (Paras 36, 38)
Facts of the case:
The respondent, a senior director, was dismissed after being found guilty of three out of four charges related to unauthorized disclosures of confidential information and misconduct. (Paras 4-10)
Findings of Court:
The court concluded that despite procedural improprieties, the dismissal was justified due to the serious breaches of trust and confidentiality by the respondent. (Paras 16, 34)
Issues: The main issues included whether the presence of an investigating officer compromised the fairness of the Disciplinary Committee proceedings and if the dismissal was warranted given the nature of the charges. (Paras 12, 30)
Ratio Decidendi: The court held that the respondent's actions constituted a serious breach of trust, justifying dismissal. Procedural improprieties did not negate the correctness of the dismissal decision. (Paras 16, 34)
Result: Appeal allowed; cross appeal dismissed.
JUDGMENT
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 sixth 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 bin 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 the case against the respondent. It was not disputed that one Mr Kirupakaran was present at the meeting. According to the respondent, Mr Kirupakaran was the investigating officer in charge of the respondent's case. The respondent herself was not present at the Disciplinary Committee meeting deliberating on whether the charges had been made out and whether the respondent's responses to the show cause latter provided a reasonable explanation of her actions.
[8] The decision of th
