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2023 MarsdenLR 496
INDUSTRIAL COURT SARAWAK
MOHAMAD HAFIZ HUSEN – Appellant
Versus
AIRASIA BERHAD – Respondent
Award No: 2349 Of 2023 [Case No: 8/4-1488/22]
An employee's refusal to comply with a lawful and reasonable order, such as mandatory vaccination for safety, can justify dismissal under employment law.
Headnote:(A) Industrial Relations Act 1967 - Subsection 20(3) - Dismissal of employee - The claimant was dismissed for refusing COVID-19 vaccination, which the company deemed necessary for flight operations - The court emphasized the employer's duty to provide just cause for dismissal and the standard of proof required in such cases. (Paras 14-20, 34-39)
(B) Employment Law - Employee's duty to comply with lawful orders - The court ruled that disobedience to a lawful and reasonable order, such as vaccination for safety, can justify dismissal. (Paras 28-30)
Facts of the case:
The claimant, employed as a Flight Attendant since 2009, was dismissed after refusing to comply with the company's COVID-19 vaccination policy despite attempts to convince him. The company faced operational challenges due to the pandemic and implemented a policy requiring vaccination for flight duties.
Findings of Court:
The court found that the company's dismissal of the claimant was justified due to his refusal to comply with a lawful order that aligned with public health policies.
Issues: The main issues were whether the claimant's dismissal was justified and whether the company's vaccination policy constituted a lawful and reasonable order.
Ratio Decidendi: The court concluded that the claimant's refusal to be vaccinated constituted disobedience to a lawful order, justifying the dismissal.
Result: The claimant's case is dismissed.
| Table of Content |
|---|
| 1. dismissal related to vaccination refusal. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13) |
| 2. industrial court's role in dismissal cases. (Para 14 , 15 , 16) |
| 3. burden of proof lies with the employer. (Para 17 , 18) |
| 4. evidence required to establish misconduct. (Para 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27) |
| 5. employee's duty to comply with lawful orders. (Para 28 , 29 , 30 , 31 , 32 , 33) |
| 6. justification for dismissal based on health policy. (Para 34 , 35 , 36 , 37 , 38 , 39) |
Reference
[1] This is an order of reference dated 7 November 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 Mohamad Hafiz Bin Haji Husen (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 11 November 2009 as a Flight Attendant. At the time of dismissal, the Claimant's last drawn basic salary was RM 1,700.00.
[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 31 May 2021, the Company still paid the Claimant's salary even though the Claimant was not vaccinated, the Claimant's SEP training (Safety and Emergency Procedures) had expired, and the Claimant was not assigned any flight duty.
[10] On 3 November 2021, the Company issued a furlough letter, but the Claimant refused to.
[11] 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.
[12]Vide a letter dated 7 January 2022, the Claimant sent another letter to the Company, maintaining his position not to be vaccinated.
[13] On 11 January 2022, the Company terminated the Claimant from the Company.
The Law
Roles And Functions Of The Industrial Court
[14] 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] 1 MLRA 412; [1995] 2 MLJ 753; [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...
[15] The above principle was further reiterated by the Court of Appeal in the case of K A Sanduran Nehru Ratnam v. I-Berhad ; ; ; ; ; [2007] 1 ILR 257, where His Lordship Justice Mohd Ghazali Yusoff JCA outlined the function of the Industrial Court
