An employee's refusal to comply with a lawful vaccination policy can constitute insubordination, justifying dismissal under the Industrial Relations Act.

AWARD

Augustine Anthony:

The Reference

[1] This is a reference dated 11 October 2022 by the Director General of Department of Industrial Relations, Ministry of Human Resources pursuant to s 20(3) of the Industrial Relations Act 1967 ("The Act") arising out of the dismissal of MAZUNA BEGUMTI KADIR MIRA (Claimant) by MALAYSIA AIRLINES BERHAD (Company) on the 29 September 2021.

[2] Pursuant to the directions of this Court, the parties in this matter filed their respective submissions dated 5 October 2023 (Claimant's written submissions), 9 October 2023 (Company's written submissions), 6 November 2023 (Claimant's written submissions in reply) and 9 November 2023 (Company's written submissions in reply).

[3] This Court considered all the notes of proceedings in this matter, documents and cause papers in handing down this Award namely:

(i) The Claimant's Statement of Case dated 12 December 2022;

(ii) The Company's Statement in Reply dated 9 January 2023;

(iii) The Claimant's Rejoinder dated 24 January 2023;

(iv) The Claimant's Bundles of Documents - CLB 1, CLB 2 & CLB 3;

(v) The Company's Bundles of Documents - COB1 & COB 2;

(vi) The Claimant's Witness Statement - CLW - WS (Puan Mazuna Begumti Kadir Mira);

(vii) Company's Witness Statement - COW1-WS (Dr Mohammad Razin Kamarulzaman);

(viii) Company's Witness Statement - COW2 - WS (Encik Mohammad Fauzi Mahayuddin);

Introduction

[4] The dispute before this Court relates to the claim by Mazuna Begumti Kadir Mira ("Claimant") that she was dismissed from her employment without just cause or excuse by Malaysia Airlines Berhad ("the Company") on the 29 September 2021.

[5] The Claimant was employed by Malaysian Airline System Berhad (MAS) since 1992 but MAS subsequently ceased business. The Claimant was then offered fresh employment by Malaysia Airlines Berhad, the Company herein by its letter dated 27 May 2015 and the Claimant accepted and commenced this fresh employment on the 1 September 2015 as a Leading Crew (Cabin Crew).

[6] In line with the Government of Malaysia's National COVID-19 Immunisation Programme (NIP) commencing in early 2021, the Company under the Malaysian Aviation Group (MAG) COVID-19 Immunisation Policy dated 6 July 2021 introduced its COVID-19 immunisation policy in the month of July, the same year which made this immunisation compulsory for all employees which the Claimant was aware of. Despite the requirement for the Claimant to obtain the COVID-19 vaccine, the Claimant did not get the COVID-19 vaccine. The Claimant too did not have any medical reasons to justify why she ought to be exempted from taking the COVID-19 vaccine. The Claimant's justification for not taking the vaccine was due to her own concern on the purported side effects of the vaccine. Despite the Company's assurance that the vaccines approved by the Government of Malaysia are safe, the Claimant nevertheless refused to be vaccinated.

[7] The Company states that the Claimant's act of refusal to comply with the Company's Covid-19 Immunisation Policy amounted to a serious misconduct of insubordination that would put at risk the Company's efforts to ensure a safe working environment for employees and public as a whole. The Company then issued the Claimant a show cause letter dated 20 August 2021 for non compliance of Company's immunisation policy which amounted to insubordination. The Claimant replied to this show cause letter and maintained her refusal due to her concerns on the purported side effects of the vaccine. Despite the Company's assurance of the side effects being either mild or uncommon, the Claimant continued to refuse to take the vaccine. In view of the Claimant's refusal to take the vaccine, the Company decided to terminate the Claimant from her employment effective 13 September 2021. The Claimant only completed her staff exit clearance form on the 29 September 2021, hence her stance that she was dismissed from her employment on the 29 September 2021 (a technical issue which is no longer an issue in view of