INDUSTRIAL COURT OF MALAYSIA BETWEEN AMIR HIRMAN BIN SULAIMAN (CLAIMANT)

AND AIRASIA BERHAD (RESPONDENT)

AWARD NO: 2363 OF 2023 Before : Y.A. TUAN NAZRI BIN ISMAIL Venue : Industrial Court Malaysia, Sarawak Date of order of : 13.07.2022 reference Date of receipt of : 15.07.2022 order of reference Dates of mention : 23.08.2022, 25.10.2022 Dates of hearing : 09.10.2023, 18.10.2023 Representation For Claimant : In person For Respondent : Mr Ignatius Lau Kiew Kuang Messrs K.K. Lau Advocates AWARD REFERENCE This is an order of reference dated 13.07.2022 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 Amir Hirman Bin Sulaiman (the Claimant) by AirAsia Berhad (the Respondent) on 11.01.2022.

BRIEF FACTS [1] The Company is AirAsia Berhad, with a business address at LCC Terminal, Jalan KLIA S3, Southern Support Zone, KLIA, 64000 Sepang, Selangor Darul Ehsan.

[2] The Claimant commenced employment with the Company on 14.04.2012 as a Flight Attendant. At the time of dismissal, the Claimant’s last drawn basic salary was RM 1,500.00.

[3] On 18.03.2020, the country went into lockdown after implementing the Movement Control Order to flatten the curve and control the COVID-

19 pandemic.

[4] 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.

[5] On 03.05.2021, 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.

[6] At first, the Claimant indicated his unwillingness to obtain the COVID-19 vaccine due to health and safety concerns.

[7] The Company made several attempts to convince the Claimant to undergo vaccination, but the Claimant maintained his position against the vaccine.

[8] On 03.11.2021, the Company issued a furlough letter, but the Claimant refused to.

[9] 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 31.12.2021.

[10] Vide a letter dated 07.01.2022, the Claimant sent another letter to the Company, maintaining his position not to be vaccinated.

[11] On 11.01.2022, the Company terminated the Claimant from the Company.

THE LAW Roles And Functions of The Industrial Court [12] The role of the Industrial Court under section 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. 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] 3 CLJ 344; [1995] 2 MLJ 753, 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...

[13] 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 CLJ 347, where His Lordship Justice Mohd Ghazali Yusoff JCA outlined the function of the Industrial Court as follows:

“[21] The learned judge of the High Court held that the Industrial Court had adopted and applied a wrong standard of proof in holding that the respondent has failed to prove dishonest intention and further stating that the respondent has not been able to discharge their evidentialburden in failing to prove every element of the charge. He went on to say that