Recently in October 2022, the Federal Court published the grounds of judgment on this landmark case which was decided in January 2022.
The presiding Federal Court Judge, Datuk Nallini Pathmanathan, began her grounds of judgment by noting that this case was of “critical importance to the trade union movement in the country”.
Facts
Ismail Nasaruddin (the “Appellant”) was an employee of Malaysia Airline System Berhad (“MAS”) & was also the president of the National Union of Flight Attendants Malaysia (“NUFAM”). In 2013, MAS introduced policy changes which affected the wages & schedules of cabin crew employees, which was also allegedly discriminatory of pregnant women cabin crew employees. Despite voicing out on the matter internally & referring the matter as a trade dispute to the Director General of Industrial Relations, this was not resolved.
Subsequently, the Appellant in his capacity as president of NUFAM issued a press statement whereby he highlighted the cabin crew’s complaints and called on MAS to take steps to ensure their welfare and safety. The Appellant also called upon the then Chief Executive Officer of MAS to resign for not doing the necessary to solve the cabin crew’s problems. A day after, MAS suspended the Appellant from work & issued a show-cause letter stating that his issuance of the press statement was a ‘serious misconduct’ that breached the terms of his employment contract. MAS subsequently dismissed the Appellant from service.
The Appellant challenged his dismissal before the Industrial Court but his claim was dismissed. At the High Court in 2019, the Appellant succeeded in the judicial review application to quash the Industrial Court’s decision. In 2020, the Court of Appeal allowed MAS’ appeal.
The Federal Court Decision
The Appellant obtained leave to appeal to the Federal Court.
The principal question of law framed is as follows: “What is the extent of the protection afforded to an employee in respect of a charge of misconduct by an employer in relation to the employee’s acts carried out in his capacity as a trade union officer or member, having regard to the relevant legal principles including ss 4, 5 and 59 of the Industrial Relations Act 1967, s 8 of the Employment Act 1955, ss 21 and 22 of the Trade Union Act 1959 and the International Labour Organisation’s ‘Right to Organise and Collective Bargaining Convention 1949?“
The Federal Court ultimately decided in favour of the Appellant. After combing through protections afforded under Malaysian statute, as well as Canadian, European & UK case law, the Federal Court answered the question of law as follows: “An employee ought not to be dismissed for participation in trade union activities carried out in his capacity as a trade union officer or member, unless the activities are extraneous to trade union affairs, or were carried out maliciously, or in a manner which knowingly or recklessly disregards the truth.”
The Federal Court further set out the test to be utilised when determining whether an act of alleged misconduct which involves engagement in trade union activities amounts to misconduct warranting disciplinary action or dismissal, namely that the following considerations must be taken into account:
(a) the alleged act of misconduct should be identified;
(b) was the alleged act of misconduct related to a trade union activity?
(c) was the alleged act of misconduct complained of by the employer closely connected with and carried out in the workman’s role as a union representative?
Or (d) was the alleged act of misconduct while (stated to be) carried out by the workman, purportedly in the course of his activities as a union representative, knowingly or recklessly false, or tainted with malice, illegality and unreasonableness such that it could not reasonably be said to fall within the scope of bona fide trade union activity?
(e) an example of this would be the case of Palomo Sánchez. Here the employees were dismissed for publishing a cartoon showing their colleagues giving sexual favours to the director of human resources. The ECtHR held that the employees’ dismissal had not been a manifestly disproportionate or excessive sanction, requiring the state to afford redress by annulling it or replacing it with a more lenient measure. Thus, if trade union representatives publish obscene caricatures or make lewd statements relating to the CEO or other members of management, that might well fall outside the scope of activities bona fide in furtherance of a trade dispute.
On the facts, the Federal Court held that the Appellant’s press statement “relate wholly to problems faced by employees at the workplace and criticism of the management for failing to address the same”. Furthermore, the Appellant did not issue the press statement out of personal interest and it “was done in the name of NUFAM and for the benefit of the thousands of cabin crew members he represented with a view to improve workplace conditions”. In the circumstances, the Federal Court held that the Appellant’s press statement amounted to participation in the lawful activities of a trade union and was not unreasonable, malicious, or knowingly or recklessly false. His dismissal from employment by MAS was therefore unjust.
Our Lim Wei Jiet acted as co-counsel for the Appellant together with Dato’ Ambiga Sreenevasan, while Dato’ N. Sivabalah & Jamie Goh acted for MAS.
