Updated: Jun 20
The Federal Court's decision in the case of Ismail Nasaruddin Abdul Wahab v Malaysian Airline System Bhd  addressed the dismissal of Ismail Nasaruddin Abdul Wahab ("Ismail"), the president of the National Union of Flight Attendants Malaysia ("NUFAM"), by Malaysia Airline System Bhd ("MAS") in 2013.
In 2013, a group of cabin crew employees worked for an airline called MAS.
They were very unhappy with MAS because the company had made them go through weight loss and fleet reassignment exercises that they disagreed with.
The employees' concerns about the fleet reassignment exercise were referred to the Director General of Industrial Relations as a trade dispute, but unfortunately, the issue couldn't be resolved.
At that time, a man named Ismail, an employee of MAS and the president of the National Union of Flight Attendants Malaysia (NUFAM), decided to take action. He issued a press statement on November 7, 2013, in his role as the president of NUFAM.
The press statement brought attention to the cabin crew workers' difficult working conditions, such as being overworked and underpaid. Ismail called on MAS to implement policies that would improve the welfare and safety of the cabin crew members. He even went as far as demanding the resignation of MAS' chief executive officer for failing to address the issues faced by the cabin crew.
However, just one day after the press statement was released, Ismail was suspended from his job. MAS issued a show cause letter to him, accusing him of two things:
first, causing the release of the press statement that called for the CEO's resignation, and
second, criticising the MAS management for creating disharmony among the cabin crew and compromising their well-being.
Ismail denied these allegations, stating that the press statement was made as the President of NUFAM, not as an employee of MAS. Despite his denial, MAS immediately dismissed Ismail, claiming that they could no longer trust and have confidence in him as an employee.
Feeling unjustly treated, Ismail took legal action against MAS under the Industrial Relations Act 1967, arguing that his dismissal was without just cause or excuse. The case reached the Industrial Court and eventually the Federal Court, the highest court in Malaysia.
In 2021, the Federal Court decided Ismail's case.
They ruled in favour of MAS, stating that Ismail's dismissal was justified because he had been found guilty of misconduct.
The court determined that the provisions in the Industrial Relations Act, which protect employees from victimisation for participating in trade union activities, did not apply in this situation.
The concept of ‘victimisation’ is not unknown to Malaysian law. It was referred to by the Court of Appeal in the case of Harris Solid State (M) Sdn Bhd & Ors v. Bruno Gentil S/O Pereira & Ors .
Harris is the authority to propose that an employer may reorganise its commercial undertaking for any legitimate reason, such as promoting better economic viability.
Still, it must not do so for a collateral purpose, such as victimising its employees for their legitimate participation in union activities.
The Court of Appeal held that on the issue of victimisation, the proper question that the employment tribunal should have asked was whether the totality of the evidence, objectively viewed, reasonably supported the conclusion that the claimants were terminated because of their union activities.
So what is the test to be utilised when determining whether alleged misconduct involving engagement in trade union activities amounts to misconduct warranting disciplinary action or dismissal?
The following considerations should assist both an employer and a workman in determining this issue:
The alleged act of misconduct should be identified;
Was the alleged act of misconduct related to a trade union activity?
Was the alleged misconduct complaint by the employer closely connected with and carried out in the workman’s role as a union representative? Or
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?
They further emphasised that even if those provisions had been breached, the appropriate remedy would have been under a different section of the law, not the one invoked by Ismail.
The Federal Court answered the questions of law in the following terms:
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”?
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, was carried out maliciously, or in a manner which knowingly or recklessly disregards the truth.
Whether the dismissal of a trade union leader for participating in trade union activities is an act of victimisation and unfair labour practice?
We do not answer Question 2 as it has been dealt with by the answer to Question 1.
Is a trade union officer speaking on behalf of the trade union obliged under the law to exhaust the trade dispute processes under ss 18, 19 and 26 of the Industrial Relations Act 1967 before issuing a press statement on the nature of such trade dispute?
If the said trade union leader had not exhausted the above process, is issuing the said press statement an act of misconduct justifying dismissal?
We answer the first part in the negative. We decline to answer the second part as it is set out in the provisions of the legislation and the Act itself.
This case sheds light on the rights and protections afforded to trade union members in Malaysia and how disputes between employees and employers can unfold in the legal system.
Ismail was dismissed due to statements he made about MAS as NUFAM's president while employed with MAS.
The Federal Court clarified that employees have the right to participate in trade union activities without fear of retaliation or interference from employers as long as such activities are carried out in good faith, wholly relate to the welfare of employees, and are not knowingly or recklessly false, malicious, illegal, or unreasonable.
The court emphasised that acts closely connected to an employee's role as a union representative should be considered protected trade union activities unless they fall outside the scope of legal protection due to being false, malicious, illegal, or unreasonable.
Furthermore, the court highlighted that employers must assess whether the alleged misconduct is within the scope of trade union activity or if it exceeds such scope.
While employees have the right to participate in union activities, they do not have unrestricted freedom to act as they like. The courts will evaluate the actions of trade union members and the surrounding circumstances to determine if the actions were reasonable, malicious, knowingly or recklessly false.
The Federal Court's decision underscores the importance of balancing employees' rights to engage in union activities with the need for employers to maintain a proper work environment.
The ruling provides valuable guidance on evaluating alleged misconduct involving engagement in trade union activities. It emphasises the rights of employees to participate in such activities without fear of unfair disciplinary action or dismissal.
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