Petitioner Advocates:Shobah Veera,Ananthan Vijayakumar ,Respondent Advocate: Sebastian Tay Hanxin,Rebecca Sonali Alfred

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

INDUSTRIAL COURT APPEAL NO. [XXXXX] OF 2023

BETWEEN

RIDZUAN YAHYA
(NRIC No. [XXXXXXX])
... Appellant

AND

AIR ASIA X BERHAD
(Company No. [XXXXXXX])
... Respondent

---

MEMORANDUM OF APPEAL

(Filed pursuant to section 33 of the Industrial Relations Act 1967)

The Appellant appeals from the whole of the Award of the Industrial Court dated [insert date] in Award No. 1831 of 2023 (!) (!) (!) (!) (!) (!) .

GROUNDS OF APPEAL

1. The learned Industrial Court erred in law and/or fact in holding that the Appellant was guilty of the alleged misconduct on a balance of probabilities, when the Respondent failed to discharge its burden of proof, relying solely on the uncorroborated, inconsistent and belated evidence of COW-2 without contemporaneous eyewitnesses, physical evidence or independent corroboration. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)

2. The learned Industrial Court erred in law and/or fact in finding that the alleged remarks and conduct during the pre-flight briefing on Flight D7222 constituted misconduct, when such remarks were undisputed light-hearted banter in the context of early COVID-19 uncertainty regarding non-mandatory mask-wearing, with no evidence of crew distress or complaint at the time. (!) (!) (!) (!) (!) (!) (!) (!) (!)

3. The learned Industrial Court erred in law and/or fact in determining that the alleged staring, "Wow" remark, question about marriage, explicit remark ("Kalau I husband you dah lama I pancut dalam bagi you pregnant"), hand-holding and glove remark constituted unwelcome sexual harassment, when: (a) the Appellant credibly denied harmful intent and explained them as crew banter; (b) COW-2 did not contemporaneously object or report during the flights; (c) her WhatsApp messages and email were self-serving and influenced by subsequent escalation; and (d) crew observations of her discomfort were vague and non-specific. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)

4. The learned Industrial Court erred in law by misapplying the test for sexual harassment, holding that silence or lack of objection by COW-2 equated to non-consent without assessing the full context of workplace camaraderie among cabin crew, and by inferring psychological impact without medical or independent evidence of distress. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)

5. The learned Industrial Court erred in fact and/or perversely assessed the evidence by giving undue weight to COW-2's tearful testimony and contemporaneous WhatsApp/email complaints (made 2-6 days post-incident), while discounting the Appellant's consistent denial, his long service record since 2008 with promotions to Purser (!) (!) (!) , and the absence of prior similar complaints against him. (!) (!) (!) (!) (!) (!) (!) (!)

6. The learned Industrial Court erred in law and/or fact in holding that the Respondent had reasonable grounds at the time of dismissal to believe the misconduct occurred, when its investigation was rushed, one-sided (relying on anonymous COW-2 without confronting the Appellant with specifics during ground duty (!) ), and conducted amid MCO restrictions without opportunity for the Appellant to fully respond. (!) (!) (!) (!) (!) (!)

7. The learned Industrial Court erred in law by holding that proven misconduct (if any) justified dismissal as proportionate, when: (a) the alleged acts were isolated, non-physical in nature for most allegations, and not amounting to major misconduct under the Disciplinary Policy; (b) the prior Final Warning was for unrelated Facebook posts (!) (!) (!) (!) (!) (!) ; (c) no progressive discipline was applied despite the Appellant's seniority and clean record otherwise; and (d) lesser sanctions like suspension would suffice in a multicultural cabin crew environment. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)

8. The learned Industrial Court erred in law and/or fact in breaching trust as a factor for dismissal, when the Appellant's role as Purser did not confer authority over COW-2 warranting such breach, and the multicultural workplace context required considering cultural nuances of banter rather than imputing sexual intent. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)

9. The learned Industrial Court erred in law by overstating the curative effect of de novo proceedings to excuse the Respondent's complete failure to conduct a domestic inquiry, denying the Appellant natural justice and procedural fairness prior to dismissal. (!) (!) (!) (!) (!)

10. The decision of the learned Industrial Court was against the weight of evidence, perverse and Wednesbury unreasonable, warranting interference as no reasonable tribunal could have reached the same conclusion on the facts. (!) (!) (!) (!) (!) (!) (!) (!)

RELIEF SOUGHT

The Appellant seeks:

(a) That the Award of the Industrial Court dated [insert date] in Award No. 1831 of 2023 be set aside in its entirety (!) (!) ;

(b) A declaration that the Appellant's dismissal on 27 April 2020 was without just cause and excuse (!) (!) (!) (!) (!) (!) ;

(c) An order for reinstatement of the Appellant to his former position as Purser with full backwages, benefits and continuity of service from 27 April 2020 (!) (!) (!) (!) (!) ;

(d) Alternatively, compensation in lieu of reinstatement;

(e) Costs here and below;

(f) Such further or other relief as this Honourable Court deems fit.

DATED this [insert date] day of [insert month], 2023.

[LAWYER'S NAME]
Solicitor for the Appellant
[Address]
[Contact Details]

To be served upon:
Solicitors for the Respondent