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2025 MarsdenLR 3614
COURT OF APPEAL PUTRAJAYA
Azizul Azmi Adnan, J
DATUK ROGER TAN KOR MEE & ORS – Appellant
Versus
HAYATUNNISAH SULAIMAN – Respondent
[Civil Appeal No: W-01(A)-189-04-2022]
The dismissal of an employee can be justified based on serious misconduct, even in the presence of procedural improprieties in the disciplinary process.
Headnote:(A) Suruhanjaya Perkhidmatan Air Negara Act 2006 - Judicial review of employee dismissal - The court found procedural improprieties but upheld the dismissal for serious misconduct involving unauthorized disclosure of confidential information. The dismissal was deemed appropriate despite claims of natural justice violations. (Paras 12, 34, 36)
(B) Natural justice and procedural fairness - The principle of nemo judex and audi alteram partem are critical, but the ultimate correctness of a dismissal justifies refusal of certiorari. (Paras 36)
Facts of the case:
The respondent, a senior director at the Commission, was dismissed following disciplinary proceedings for four charges including unauthorized disclosures of legal documents. The High Court quashed the dismissal citing breaches of natural justice.
Findings of Court:
The ultimate decision to dismiss the respondent was correct despite procedural flaws, reinforcing the notion of trust in the employment relationship.
Issues: Was the conduct of the respondent sufficient to justify dismissal? Did the procedural improprieties warrant overturning the decision?
Ratio Decidendi: Dismissal was justified due to the seriousness of the misconduct, affirming that even if procedural errors occurred, they do not invalidate the ultimate decision.
Result: Appeal allowed; cross-appeal dismissed.
| Table of Content |
|---|
| 1. judicial review application overview. (Para 1 , 2) |
| 2. background of the respondent's employment and dismissal. (Para 3 , 4 , 5) |
| 3. process and findings of the disciplinary proceedings. (Para 6 , 7 , 8 , 9 , 10 , 11) |
| 4. high court's reasoning on breach of natural justice. (Para 12) |
| 5. grounds for appeal and cross-appeal. (Para 13 , 14) |
| 6. summary of court's decision. (Para 16) |
| 7. preliminary objections and hearsay considerations. (Para 18 , 19 , 20 , 21 , 22 , 23 , 24) |
| 8. analysis of dismissal justification and procedural propriety. (Para 29 , 30 , 31 , 32 , 33 , 34 , 35) |
| 9. conclusion and final order of the court. (Para 36 , 37) |
Introduction
[1] This appeal relates to an application for judicial review commenced by the respondent in this case, Puan Hajah Hayatunnisah Sulaiman, who contended that (among others) she was unfairly dismissed by her employer. The High Court had allowed her application for judicial review. After hearing the appeal, we unanimously allowed the appellants' appeal.
[2] These grounds record the reasons for our decision and constitute the judgment of the Court.
Material Background Facts
[3] The respondent applicant was an employee of the 6th appellant, Suruhanjaya Perkhidmatan Air Negara (the "Commission"), a statutory corporation established under the Suruhanjaya Perkhidmatan Air Negara Act 2006 to regulate the water and sewage-related industries in Malaysia. She was dismissed. At the time of her dismissal, she was the senior director of the Legal Division in the Commission.
[4] Disciplinary proceedings were carried out against the respondent on four charges. They are summarised below:
(a) the respondent was charged with disclosing copies of legal opinions issued by the Legal Division of the Commission to Associate Professor Dr Rasyikah Md Khalid, a law lecturer in the law faculty of Universiti Kebangsaan Malaysia without the prior approval of the Commission. The disclosures were made for the purposes of a book entitled "Isu Perkhidmatan Pembekalan Air di Malaysia-Tafsiran di bawah Akta Industri Perkhidmatan Air 2006 dan Perundangan Subsidiari" (referred to here as the "second book"). The disclosures were said to have been made:
(i) at a meeting on 21 November 2016; and
(ii) via emails on 8 December 2016.
As we shall see, the date of the first disclosure will be significant.
(b) the respondent was charged with commencing publication works for a book entitled "Water Services Law and Landmark Cases" (referred to here as the "first book") without prior authorisation, and with requesting lists of cases decided under the State water enactments for the purposes of the first book from various water services operators without disclosing the purpose of such information request;
(c) the respondent was charged with making further unauthorised disclosures to Associate Professor Dr Mahmud Zuhdi Mohd Nor, with providing a referee's letter to him and with providing the log-in details for LawNet services to a third party. Among the documents said to have been disclosed to Dr Mahmud Zuhdi were:
(i) copies of papers tabled a meeting of the Commission and of its rules and procedures committee;
(ii) a copy of the Water Industry Performance Report 2014 (which was a document with restricted circulation);
(iii) a copy of the draft Water Services Industry (Bulk Water Supply Agreement) Rules 2015 prior to its publication in the Government gazette; and
(iv) copies of various draft contracts prepared by the Commission; and
(d) finally, the respondent was charged with bringing the Commission into disrepute by threatening her personal assistant and by her unprofessional conduct that had resulted in a high employee turnover rate in the Legal Division.
[5] It was an undisputed fact that the respondent had tabled her proposal for the second book at a management retreat of the Commission held between 23 and 25 November 2016.
[6] The four charges were set out in a show cause letter dated 30 May 20171. The respondent provid
