2023 MarsdenLR 1469
INDUSTRIAL COURT KUALA LUMPUR
RIDZUAN YAHYA – Appellant
Versus
AIR ASIA X BERHAD – Respondent
Award No: 1831 Of 2023 [Case No: 22/4-13/21]
The court affirmed that an employer must prove misconduct on a balance of probabilities, and failure to conduct a domestic inquiry does not invalidate the dismissal process.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal of employee for misconduct - Allegations of inappropriate conduct and sexual harassment against Claimant - Court found Claimant guilty of sexual harassment and inappropriate remarks, dismissing his appeal for reinstatement. (Paras 24, 45, 54)
(B) Employment Law - Burden of proof - Employer must prove misconduct on a balance of probabilities; failure to conduct domestic inquiry does not invalidate proceedings before the Industrial Court. (Paras 49, 51)
(C) Sexual Harassment - Definition and examples of sexual harassment established; workplace conduct must be respectful and non-offensive. (Paras 46, 48)
Facts of the case:
The Claimant was dismissed from his position as Purser after allegations of sexual harassment and inappropriate remarks were substantiated, including comments made during flights and in pre-flight briefings. (Paras 10-16, 31-34)
Findings of Court:
The Court found sufficient evidence of misconduct and that the dismissal was justified based on the nature of the allegations. (Paras 44-54)
Issues: The main issues were whether the Claimant committed the alleged misconduct and whether it constituted just cause for dismissal. (Paras 24, 45)
Ratio Decidendi: The Court ruled that the Claimant's actions amounted to sexual harassment and inappropriate workplace behavior, justifying his dismissal. (Paras 45, 54)
Result: Claimant's appeal dismissed; dismissal upheld.
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
-
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. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
-
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. (!) (!) (!) (!) (!) (!) (!) (!) (!)
-
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. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
-
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. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
-
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. (!) (!) (!) (!) (!) (!) (!) (!)
-
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. (!) (!) (!) (!) (!) (!)
-
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. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
-
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. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
-
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. (!) (!) (!) (!) (!)
-
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
| Table of Content |
|---|
| 1. reference under industrial relations act (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. factual background of the dismissal case (Para 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17) |
| 3. role of the industrial court in dismissal cases (Para 18 , 19 , 20 , 21 , 22 , 23) |
| 4. allegations of misconduct and context (Para 24 , 25 , 26 , 27 , 28 , 29) |
| 5. findings on sexual harassment allegations (Para 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44) |
| 6. determination of just cause for dismissal (Para 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52) |
| 7. conclusion of the court's judgment (Para 53) |
Reference
[1] This is a reference made under s 20(3) of the Industrial Relations Act 1967 (Act 177), arising out of the dismissal of Ridzuan Bin Yahya (hereinafter referred to as "the Claimant") by Air Asia X Berhad (hereinafter referred to as "the Company") on 27 April 2020.
[2] The Ministerial reference in this case required the Court to hear and determine the Claimants' complaint of dismissal by the Company on 27 April 2020.
I. Procedural History
[3] The Court received the letter pertaining to the Ministerial reference under s 20(3) of the Industrial Relations Act 1967 on 4 January 2021.
[4] The matter was fixed for mention on 3 February 2021, 10 March 2021, 27 October 2021, 24 November 2021 and 23 February 2023.
[5] The trial proceeded on 12 July 2022, 2 November 2022, 9 January 2023 and concluded on 7 March 2023.
[6] The identity of the Complainant will be kept confidential in this Award and she will be referred to as "COW-2", she being the Company's second witness.
II. Factual Background
[7] The Claimant commenced employment with Air Asia Berhad as a Flight Attendant with a fixed term contract of 2 years, ie from 26 December 208 to 25 December 2010. He was subsequently confirmed in his employment effective 26 June 2009.
[8] The Company thereafter offered the Claimant the position of Flight Attendant effective 1 October 2010 for the balance of his fixed term contract with Air Asia Berhad which was due to expire on 25 December 2010.
[9] The Claimant was given a promotion to the role of Senior Flight Attendant on 31 March 2011, and thereafter promoted to the position of Purser on 1 December 2013. His last drawn salary was RM2,300.00 per month with an average monthly allowance of RM4,500.00.
[10] On 11 February 2020, a Notice To Explain dated 11 February 2020 was issued to the Claimant due to allegations that he had on 3 February 2020:
i. Posted an inappropriate post on his Facebook account which read:
"Gua dengar ada puak2 pilot menggelupur dengan cadangan gua. Tak puas hati meh cakap depan gua. Don't be a pussy and talk shit in your WhatsApp groups".
ii. Posted an inappropriate post on his Facebook page which read:
"Kemain lagi "yes, boss" bila boss post kat TempatKerja, tapi dok MC bila dah roster keluar. Kerja pun hancur. AllStars konon. Weh baik kau berenti ajelah kalau tanak keje elok2. Nyusahkan orang je".
[11] The Claimant had provided his explanations to the said Notice To Explain of 11 February 2020 but the Company found it unacceptable. However, the Company decided to issue him with a Final Warning Letter dated 20 February 2020.
[12] The Company contends that on 10 March 2020, it had received a complaint of verbal and physical sexual harassment from COW-2. In COW-2's email, she recounted amongst others, the following:
i. During a pre-flight briefing, the Claimant had said in a loud voice and sarcastically to her and other cabin crew members at the briefing area "You all semua ni takut mati ke?!";
ii. During Flight D7222 (KUL/SYD) STD: 2315 hours on 1 March 2020 ("Flight D7222'), the Claimant had-
a. Called out her name and said "Wow" whilst staring at her backside;
b. Said to her "Kalau I husband you dah lama I pancut dalam you bagi pregnant" and then laughed.
iii. During Flight D7223 (SYD/KUL) on 4 March 2020 ("Flight D7223"), the Claimant had held COW-2's hands whilst she was holding the cart ha