Back
2021 MarsdenLR 4199
INDUSTRIAL COURT JOHOR
MOHD HAFIZUL ABDUL RAHIM – Appellant
Versus
MALAYSIA AIRLINES BERHAD – Respondent
Award No: 220 Of 2021 [Case No: 16/4-2134/19]
Posting derogatory comments about an employer on social media can constitute serious misconduct justifying dismissal, regardless of the medium used.
Headnote:(A) Industrial Relations Act 1967 – Employment dismissal – Dismissal for misconduct – Claimant dismissed for posting derogatory comments on social media – Employment relationship entails duty of loyalty and confidentiality – Industrial Court can evaluate the appropriateness of dismissal in light of misconduct. (Paras 21-25, 36-39)
(B) Absence of domestic inquiry – While a domestic inquiry is ideal, its absence may be cured by a hearing before the Industrial Court, provided fair opportunity for the claimant to be heard is granted. (Paras 14-16)
(C) Standard of proof – Employer bears the burden to prove misconduct on a balance of probabilities, not beyond reasonable doubt. (Paras 22-23)
Facts of the case: The Claimant was dismissed for posting derogatory comments about the Company and its management on social media. The Company argued this constituted serious misconduct under its HR Policy.
Findings of Court: The Court found the Claimant's actions breached the Company's loyalty and confidentiality obligations, justifying dismissal.
Issues: Key issues included whether dismissal occurred and if it was with just cause.
Ratio Decidendi: The court held that derogatory remarks about the employer constitute serious misconduct that can warrant dismissal, referencing relevant case law to support its conclusions.
Result: Claim dismissed.
AWARD
Background
[1] The Claimant commenced his employment with Malaysia Airlines System Berhad (MAS) with effect from 17 April 2006. MAS ceased to exist as an entity on 31 August 2015 and was rebranded to Malaysia Airlines Berhad (MAB). As such, the Claimant was employed by Malaysia Airlines Berhad as an Aircraft Technician with effect from 1 September 2015.
[2] With effect from 1 March 2016, the Claimant was offered a position of an Assistant Manager, Technical Fleet Management at the Fleet Department of MAB. However, vide a letter dated 12 September 2016, the Claimant was not confirmed in his position and served his last day with MAB on 9 December 2016.
[3] Effective 1 September 2018, the Claimant accepted the offer by the Company to reinstate him to his former position with the Company as an Aircraft Technician.
[4] On 31 May 2019, the Company issued a Show Cause letter to the Claimant as follows:
[5] After considering the Claimant's reply to the Show Cause letter dated 10 June 2019, the Company found the Claimant's explanation unsatisfactory and decided to dismiss the Claimant with immediate effect via its letter dated 13 June 2019 on the grounds of serious misconduct.
The Company's Case
[6] In addition to being bound to the terms and conditions of his employment contract, the Claimant was also subject to the followings:
i. The Company's Human Resources (HR) Corporate Policy; and
ii. The Company's Group Code of Business Conduct.
[7] Sometime in May 2019, the Claimant had been found to have posted the following comment on the Facebook page of former Prime Minister, Datuk Seri Najib bin Tun Abdul Razak (Datuk Seri Najib) (the said comment) which the Claimant did not deny doing so:
[8] By the Claimant's action in posting the said comment as shown above, the Claimant had been found to have tarnished the reputation of the Company and had breached the following:
i. Clause 6.2 (PROCEDURE) (1)(c) & (d), cl 6.8 (POLICY) (3) and (PROCEDURE) (2)(a) of the Company's HR Corporate Policy; and
ii Clauses 5.1 and 5.4 of the Company's Group Code of Business Conduct.
[Filed in the Company's Bundle of Documents (COB) at pp 24, 25, 29, 52 & 54]
[9] The Company's sole witness to give evidence for its case was Muhammad Fauzi bin Mahayuddin (COW 1), Senior Manager, Industrial Relations.
The Claimant's Case
[10] The Claimant replied the Show Cause letter via his letter dated 10 June 2019 (as filed in the Claimant's Bundle of Documents (CLB 1) at pp 39 to 43). In the said comment, the Claimant had merely poured out his heart on the circumstances that he was put in for being a whistle blower and as a result of that he was out of employment for 24 months prior to being reinstated in 1 September 2018.
[11] The posting done by the Claimant in the Facebook page of Datuk Seri Najib was his first such posting and was a response to Datuk Seri Najib's posting. The Claimant contends that the said comment was deleted by him immediately.
[12] The Claimant contends that the posting was done in his free time and not during his working hours. It is also the Claimant's contention that he did not use the Company's internet facilities and as such he was not bound by or did not violate the Company's HR Corporate Policy and or the Company's Group Code of Business Conduct.
[13] The Claimant also contends that there is no concrete evidence that the Company has suffered irreparable damage as the result of the Claimant's posting of the said comment. The Claimant was the sole witness for his case.
The Domestic Inquiry (DI)
[14] It is fact in this case that a DI was not conducted before the Claimant was dismissed. On the authority of Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal, which followed the decision of the Supreme Court in Dreamland Corporation (M) Sdn Bhd v. Choong Chin Sooi & Industrial Court of Malaysia; [1987] 1 MLRA 357; [1988] 1 CLJ 1; [1988] 1 CLJ (Rep) 39, a defective inquiry or failure to hold a DI is not a fatality but only an irreg
