ROSHAMIZA MUHAMAD & ORS v. GUPPY PLASTIC INDUSTRIES SDN BHD & ANOR
HIGH COURT MALAYA, KUALA LUMPUR
MOHAMAD ARIFF MD YUSOF J
[PERMOHONAN SEMAKAN KEHAKIMAN NO. R3(2)-25-234-2006]
14 DECEMBER 2009
HIGH COURT MALAYA, KUALA LUMPUR
MOHAMAD ARIFF MD YUSOF J
[PERMOHONAN SEMAKAN KEHAKIMAN NO. R3(2)-25-234-2006]
14 DECEMBER 2009
GROUNDS OF DECISION
This was a judicial review application in relation to an award of the Industrial Court where the Industrial Court upheld the decision of the employer to dismiss the Applicants on the ground of misconduct after a short disciplinary enquiry.
The grounds for the judicial review application and the reliefs prayed appear in the application for judicial review and the statement under Order 53 rule 3(2), and it is not necessary to repeat them here. Suffice to state the Applicants applied for an order of certiorari to quash the entire award of the Industrial Court (Award Number 965 of 2006);  2 LNS 0965 which had dismissed the claim of unlawful dismissal without just cause and excuse. The Applicant also applied for a consequential order in the event this Court should allow the application for certiorari; in this respect the Applicants applied for any necessary consequential reliefs, or alternatively an order of mandamus to remit their claim to the Industrial Court to be reheard.
I allowed the application for judicial review for the substantive order of certiorari as prayed in prayer (a) of Enclosure 1, with a further order that an order of mandamus be issued to remit the matter back to the Industrial Court for the industrial to decide on the appropriate remedy other than dismissal. I made no order as to costs, given the circumstances, namely misconduct was proven but the issue turned on whether the outright dismissal of the Applicants was proper in law.
In summary, I was of the view that, given the facts and the total circumstances of the case, the dismissal the Claimant was wholly disproportionate and award did not disclose the Industrial Court Chairman had addressed her mind as to the harshness or severity of the punishment, and in so doing the learned Industrial Court Chairman had committed a jurisdictional error. I refer to the High Court case of Sunmugan Subramaniam v. JG Containers (M) Sdn Berhad & Another  6 CLJ 521, which applied the doctrine of proportionality in a dismissal case. The High Court in Sunmugam Subramaniam, supra, drew on earlier principles stated in the celebrated case of R Rama Chandran v. The Industrial Court of Malaysia & Another  1 CLJ 147 where the Federal Court expressly referred to the doctrine of "proportionality" as a possible fourth ground of review which called for development. The High Court in Shunmugan Subramaniam, in applying the doctrine of proportionality to the facts, stated thus:
"A perusal of the award would reveal that the Industrial Court in this instant case had totally failed to perform its duty in the second limb of its twofold function as set out in Milan Auto. In other words, the Industrial Court failed to address his mind as regards the harshness or severity of punishment. Thus, the Industrial Court had committed a jurisdictional error of law... Moreover, the Industrial Court erred in law in dismissing the Applicant's claim because it failed to apply the doctrine of proportionality." (See page 535 and 536 of the report)
I respectfully agreed with this sentiment and application of the law. On the facts of the present judicial review application, there was an element of disproportionate action taken by the employer and on this the learned Industrial Court Chairman had failed to sufficiently address her mind on this important aspect of industrial law. See also the guidelines established in the persuasive Indian Supreme Court decision in RM Parmar v. Gujarat Electricity Board  1 LLJ 261 where Thakkar CJ held:
"In imposing punishment on an erring employee an enlightened approach informed with the demands of the situation and the philosophy and spirit of the times requires to be made. It cannot be a matter of the ipse dixit of the disciplinary authority depending on his whim or caprice. Be it administration of criminal law on the exercise or disciplinary jurisdiction in departmental proceedings, punishment is not and cannot be of the "end" in itself. Punishment for the sake of punishment cannot be the motto. Whilst deliberating upon the jurisprudential dimension the following factors must be considered:(1) In a disciplinary proceeding for an alleged default of an employee punishment is imposed not in order to seek retribution or to give vent to feeling of wrath.
(2) The main purpose of punishment is to correct the fault of employee concerned by making him more alert in the future and to hold out or warning to the other employees to be careful in the discharge of their duties so that they do not expose themselves to similar punishment. And the approach to be made is the approach parents make towards an erring or misguided child.
(3) It is not expedient in the interest of the administration to visit every employee whom fault is established with the penalty of dismissal and to get rid of them. It would be counter-productive to do so for it would be futile to expect to recruit employees who are so perfect that they would never commit any fault.
(4) In order not to attract the charge of arbitrariness it has to be ensured that the penalty imposed is commensurate with the magnitude of the fault. Surely one cannot rationally justly impose the same penalty for giving a slap as one would impose for homicide."
These guidelines were referred to and applied in Sunmugan Subramaniam as well (see pages 534 and 535 of the report)
See also the persuasive Indian decision of Vasant Tukaram Mandavkar v. Life Insurers Corporation of India & Others  III LLJ (Supp) 599, where the High Court of Bombay made reference to the need to have a careful application of mind to the facts and circumstances, including the past record of the Petitioner, before an order of dismissal should be imposed.
Counsel for the Applicants made it clear in the course of submission that the applicants were not challenging the finding of guilt, or the findings of the Industrial Court that the Applicants were untruthful witnesses. The issue here was whether the Applicants were victimised for their union activity, and since the Industrial Court Chairman had considered their victimisation as an irrelevant consideration, whether her decision to uphold the employer's decision to dismiss them could be supported in law. The three Applicants were, at all material times prior to the dismissal, factory workers (a line leader, and packing operators) who were at the same time principal office bearers of an in-house union known as Kesatuan Pekerja Pekerja Guppy Plastic Industries Sdn Bhd. According to the employer, seven office bearers of the union, including the Applicants, were found to have been engaged in illegal and unlawful activities which included giving false information about the company to third parties for publication which affected the image of the company, by distributing leaflets containing false information, and by carrying out the union activities during normal office hours which disrupted the work of other workers on the company's premises. In point of fact, the leaflets said to have been produced and distributed by the union office bearers were printed by a third party. All in all, though five charges levelled against these factory workers, only the three applicants were found guilty on the first, second and fifth charges, and promptly dismissed.
The details of the charges of found on pages 4 and 5 of the Award. Suffice to say, the Industrial Court found the Applicants not guilty of the first charge, but affirmed the finding of guilt on the second and fifth charges. It was noted by the learned Industrial Court Chairman that there was no domestic enquiry held because COW 2 had testified that the Applicants as Claimants had each admitted to committing allegations one, two and five but not allegations three and four.
It was the case for the Applicants in the Industrial Court that they were victimised for their union activity. This was expressly pleaded in the statement of case, which appears on page 62 of Enclosure 3, reading:
"11. The Claimant shall contend that they were dismissed without just cause or excuse.12. The Claimants shall further contend that the decision to dismiss them was arbitrary, capricious and are acts of victimisation motivated by mala fides related to the claimant's involvement in trade union activities."
The Applicants expressly referred to the statement made by the General Manager of a company, who appeared as COW 1, in which he was questioned and he replied an agreed that he "went after the union". See the notes of proceedings produced in Enclosure 7, page 48:
"Q: The union has been corresponding, communicating from late 1997.Why is it that after this letter the whole committee were suspended?A: Because of the five charges spelt out - to find out whether true or not - yes suspend the entire AJK to investigate.Q: So you went after the union?A: Yes."
In conclusion, the learned Industrial Court Chairman found the argument that their action taken was "to nip the union in the bud" as "irrelevant to the court's consideration". It is also noted that at the material time the union had not been accorded recognition under section 9 of the Trade Unions Act. The facts, however disclosed, that the union had lodged a recognition claim but the company had refused to accord recognition.
The in-house union had earlier applied to the Registrar of Trade Unions and the proposed in-house union was approved and registered under the Trade Unions Act 1959. When the disciplinary action was taken therefore, the in-house union had been involved in an application for recognition from the employer. This was the overall scenario behind the dismissal of the Applicants by the employer.
Although the court was exercising judicial review jurisdiction and it is an accepted principle of law that findings of fact on the evidence by the Industrial Court should not be interfered with by the High Court, the argument and ground mounted by the Applicants in this judicial review application extended beyond the narrow confines of interfering with findings of fact, but encroached upon the equally important area of "irrationality" and "proportionality".
Given the right of association accorded to workers under the Federal Constitution, I believe it right and proper to assess the reasonableness and proportionality of the decision to dismiss, against the admitted evidence of the employer's representative that he went "after the union". In any event, the evidence did not disclose any sufficient attention being given to the Applicants' otherwise unblemished record and long service. I agreed with the position taken by counsel for the Applicants that the learned Industrial Court Chairman had adopted a cursory approach to the question whether the conduct complained of was serious enough to warrant an immediate dismissal. They had argued that they were distributing the leaflets which originated from a third party in the belief that the contents were true. In the circumstances, I was of the view that the punishment of an outright dismissal was unduly harsh and motivated by an extraneous factor namely to nib the in-house union activities in the bud.
In this connection, it might be useful to refer to some persuasive passages in a leading case by the Constitutional Court of South Africa, ie, Z Sidumo & Congress of South African Trade Unions v. Rustenburg Platinum Mines Ltd, Commission for Conciliation, Mediation and Arbitration & Another  ZACC 22. Although not strictly binding on the Malaysian Court, the juristic reasoning of the Constitutional Court of South Africa is of very persuasive significance. I quote the relevant passages:
" In deciding how commissioners [the South African equivalent of the Industrial Court] should approach the task of determining the fairness of the dismissal, it is important to bear in mind that security of employment is a core value of the Constitution... This is the protection afforded to employees who are vulnerable. Their vulnerability flows from the inequality that characterises employment in modern developing economics... It is a practical reality that in the first place it is employer who hires and fires. The act of dismissal forms the jurisdictional basis for a commissioner, in the event of an unresolved dismissal dispute, to conduct an arbitration in terms of the LRA [the South African Labour Relations Act]. The Commissioner determines whether the dismissal is fair.There are therefore no competing "discretions". Employer and commissioner each play a different part. .. the decision to dismiss belongs to the employer but the determination of its fairness does not. Ultimately, the Commissioner's sense of fairness is what must prevail and not the employer's view. An impartial third party determination on whether or not a dismissal is fair is likely to promote labour peace ... Employees are entitled to assert their rights ... The state is obliged to provide the means to ensure that constitutional and labour law rights are protected and vindicated."
The above juristic principles are worth emulating, coming as they do from such an esteemed institution as the Constitutional Court of South Africa. Security of employment is a core value of the Constitution and any arbitral tribunal provided with jurisdiction under the labour law legislation to adjudicate between an employer and employee should approach its jurisdiction on the basis that the position in relation to the determination of the fairness of dismissal is within the jurisdiction of the arbitral tribunal, not the employer. In this light, the arbitral tribunal should not place undue emphasis on the employer's decision to dismiss, but must proceed further to enquire whether in the total circumstances of the case, the decision to dismiss is "fair", bearing in mind the core values of the Constitution.
On the facts of this particular judicial review application, and bearing in mind the constitutional right to organise and form a trade union as a component element of the freedom of association, any decision of the employer to dismiss an employee just because an employee is a trade union office bearer should be carefully examined for legal validity under administrative law. In the circumstances of this particular judicial review application, I was of the view the position of the Industrial Court Chairman to affirm the dismissal of the employer to dismiss the Applicants should be quashed and the matter be remitted back to the Industrial Court to determine what would be a more appropriate punishment given the circumstances.
Dated: 14 DECEMBER 2009.
(MOHAMAD ARIFF MD YUSOF)
HIGH COURT MALAYA KUALA LUMPUR