Ismail Nasaruddin Bin Abdul Wahab v Malaysian Airline System Bhd  6 MLJ 414
- 1. This case concerns an appeal by an employee to the Federal Court regarding the rights of an employee to participate in trade union activities. It also concerns the protection provided under the Employment Act 1955 (“EA 1955”), Industrial Relations Act 1967 (“IRA 1967”) and Trade Union Act 1959 (“TUA 1959”) for an employee participating in trade union activities.
- 2. The employee, in his capacity as the President of his organisation’s trade union, had issued a press statement which highlighted the problems faced by his peers and called for his employer to take steps to ensure their welfare and safety. He also called for his employer’s CEO to resign for not being able to resolve the issues that were being faced at that time.
- 3. As a consequence of his issuance of the press statement, the employee was dismissed from his work. The employee proceeded to challenge his dismissal before the Industrial Court.
The Industrial Court’s decision
- 4. The Industrial Court dismissed the employee’s claim on the ground that Sections 4(1) and 5(1) of the IRA 1967, which concerns protection to employees for participating in trade union activities, cannot be relied upon by an employee in cases where the employee was found to be guilty of allegations of misconduct. The employee proceeded to appeal to the High Court against the decision of the Industrial Court.
The High Court’s decision
- 5. The High Court set aside the Industrial Court’s Award on the ground that Section 22 of the TUA 1959 and Sections 4(1) and 5(1) of the IRA 1967 are applicable in this case. Therefore, the employee was protected and permitted to participate in lawful union activities.
- 6. As the press statement issued was made in relation to the employee’s exercise of his duties as a trade union officer, the employee’s action could not be labelled as a misconduct warranting dismissal.
- 7. The employer, being dissatisfied, appealed against the decision of the High Court to the Court of Appeal.
The Court of Appeal’s decision
- 8. The Court of Appeal then set aside the High Court’s decision and decided in favour of the employer.
- 9. The Court of Appeal held that the employer had firstly succeeded in proving that the employee had, through his actions, committed a gross misconduct warranting dismissal. The Court of Appeal found that the employee had breached the express and implied terms of employment.
- 10. Further, the Court of Appeal also held that as the issue between the employer and trade union is a trade dispute as defined under the IRA 1967, the parties must adhere to the procedure for settlement of trade disputes as provided under the IRA 1967. This was not adhered to when the employee issued the press statement.
- 11. The employee, being dissatisfied, sought leave to appeal to the Federal Court against the decision of the High Court.
The Federal Court’s decision
- 12. The main issues appealed before the Federal Court were:
- (a) To what extent is an employee protected in respect of a charge of misconduct by an employer for acts carried out in their capacity as a trade union officer or member?
- (b) Whether the dismissal of the employee as the president of his organisations trade union is an act of unfair labour practice?
- (c) Whether it is necessary for a trade union officer to first exhaust the dispute faced in accordance to provisions of the IRA before issuance of any press statement on the dispute?
- 13. The Federal Court held that pursuant to Section 8 of the EA 1955, a contract of service could not be used to contract out the rights of employees to join, participate, or organise trade union activities.
- 14. Moreover, the Federal Court held that a trade union officer was not obliged to exhaust the trade dispute processes under Sections 18, 19 and 26 of the IRA 1967 before issuing a press statement. The legislation scheme does not prohibit trade unions from issuing press statements as well. Therefore, the employee in the matter was within his right to issue a press statement on the dispute faced by himself and his peers.
- 15. The Federal Court was also of the view that the press statement released by the employee was not malicious, wholly unreasonable or extraneous. It was also found that the employee did not release the press statement out of personal interest, but under its duty as his organisation’s trade union President. Thus, his action did not amount to a misconduct.
- 16. Based on the above, the Federal Court allowed the appeal and set aside the Court of Appeal’s decision.
- 17. The above decision cements the Court’s interpretation of the IRA 1967 and TUA 1959, in particular regarding trade union activities. The provisions relating to union representation and the prohibition of discrimination against workmen in their employment by reason of participating in trade union activities based on the Federal Court decision is squarely in favour and for participation of employees in trade union activities. This is a progress in workers’ rights in Malaysia.
- 18. The Federal Court’s decision could also be viewed as a recognition on the importance of trade unions acting as a platform to provide speedy and just settlement of industrial disputes. Moreover, the Federal Court’s decision safeguards employee’s right to participate in trade union activities.
- 19. This development is beneficial to both the employer and employee whereby, an employer, in view of the stronger position of trade unions would have a better streamlined avenue to discuss employment and trade disputes with its employees collectively.
- 20. On the other hand, an employee with grievance or trade dispute may approach the employer together with the trade union without any worry and concern of their status as employees. This promotes better communication and more effective resolution of conflicts between an employer and employee.
This article is intended to be informative and not intended to be nor should be relied upon as a substitute for legal or any other professional advice.
About the Authors
Syed Mohamed Ashiq
Harold & Lam Partnership
Pang Yi Qing
Harold & Lam Partnership