JUDGMENT

Ravinthran Paramaguru J:

Introduction

[1] This is an application by an employer ("the applicant") for an order of certiorari to quash the decision of the Industrial Court in Award No: 1209 of 2014 which was handed down on 30 October 2014. The Industrial Court had found that the dismissal of its employee ("1st respondent") was without just cause and excuse. The Industrial Court ordered the 1st respondent to be reinstated to his former position without any loss of wages and benefits and further ordered that he be paid back wages.

Background Facts

[2] The 1st respondent commenced employment with the applicant as an Account Assistant in the Sabah Branch in 1993. At the time of dismissal, he held the position of Occupational Safety Health Executive in the Sabah Branch. The 1st respondent was also active in union activities. Between 2001 and 2010, he held the post of President in the Sabah Union of Telekom Employees which is known by its acronym "SUTE". SUTE represents the employees of the applicant in Sabah. He was succeeded by his deputy, ie Hj Jamling bin Ghani (COW5) after he had become a bankrupt. The employees in Peninsular Malaysia belong to the National Union of Telekom Employees (NUTE) whose President at the material time was Mohd Jafar Abd Majid. The SUTE had at that time signed Collective Agreement No 5 on behalf of its members whereas the NUTE had signed Collective Agreement No 8. The allegation of misconduct on the part of the 1st respondent is related to an e-mail (referred to as the "NM e-mail" by the Chairman) that the 1st respondent received on 18 April 2010 from the e-mail address at nutemalaysia@gmail. com. No evidence was led as to the owner of this e-mail account and he or she remains unidentified.This "NM e-mail" was also sent to 104 other employees. However, the complaint of the employer was that 1st respondent forwarded the "NM e-mail" on 19 April 2010 by using his own official e-mail address to the Executive Council Members (Exco) of SUTE wherein he also made some comments. The applicant took the position that this amounted to misconduct and the 1st respondent was suspended from duty on 22 April 2010 for two weeks with half pay for indiscipline. On 26 April 2010, a show cause letter was issued to the 1st respondent to respond to five charges of misconduct. The 1st respondent replied on 30 April 2010. On 14 May 2010, the applicant preferred nine charges of misconduct against the 1st respondent. However, on 27 May 2010, the number of charges was reduced to only six. The domestic inquiry (DI) on the 1st respondent on the six charges of misconduct was held on 15 and 16 June 2010. The six charges are as follows:

First Charge

Bahawa anda semasa menyandang jawatan Pegawai Akaun di Unit OSHE, Sabah mulai tarikh 1 Oktober 2009 sehingga 22 April 2010 telah menyalahgunakan kedudukan anda semasa menjalankan tugas-tugas OSHE di seluruh Sabah telah mengeluarkan kenyataan memfitnah Hj Jamling bin Ghani menerima rasuah dari pihak syarikat, mempunyai kepentingan peribadi dan menggelar beliau sebagai "kera" dan "bangkai". Perbuatan ini adalah bertentangan dengan Fasal 4.1 - Menghormati Individu, Kod Etika Perniagaan TM Berhad.

Second Charge

Bahawa anda pada 19 April 2010 telah menyebarkan e-mel yang bertajuk "FW: BERITA TERKINI LAGI SENSASI - SAHIH JAAFAR MAJID PERASUAH + ZULKIFLI & KRONI NUTE" yang mengandungi kenyataan berbentuk hasutan untuk menimbulkan kemarahan pembaca e-mel keatas En Jaafar Majid dan NUTE dimana kenyataan dirujuk "President Nute - Jaafar Majid memaklumkan (semasa sesi tersebut) selepas sign 22 April 2010, kita (Exco NUTE) akan bercuti ke Bali (yehhhhhh!!!! Sorakan bergema oleh kroni mereka) statement in bukan palsu dan kami tidak faham si Jaafar nie guna duit TM bagi ke atau duit ahli ... (SPRM sila siasat) dan khabarnya TM akan sponsor ... apa sebabnya???? Rasuah ... rasuah ..."

Third Charge

Bahawa anda pada 19 April 2010 telah menyebarkan E-mel yang bertajuk "FW: BERITA TERKINI LAGI SENSASI - SAHIH JAAF