Migrant Worker Awarded about RM150,000 by High Court, loss of arm - a Judgment?

Migrant Worker, 27 year old, married with one child, who lost at arm in workplace accident, awarded RM150,000 by High Court. Just?

[2014] 1 LNS 90 - Current Law Journal Reference

ALAMGI v. CASS PRINTING & PACKAGING SDN BHD HIGH COURT MALAYA, KUALA LUMPUR YEOH WEE SIAM J [CIVIL SUIT NO: 22 NCvC-1150-09-2012] 27 JANUARY 2014

Legislation referred to: Civil Law Act 1956, ss. 7(3A), 12(1), (6), 28A(1)(a) Evidence Act 1950, ss. 102, 103, 114(g) Occupational Safety and Health Act 1994, s. 15 Workmen's Compensation Act 1952, ss. 2(1), 8(b), (c), 9, 26(1), (2)

Counsel: For the plaintiff - S Surendran (Fatin Irena with him); M/s Palani Aishah & Co For the defendant - Danny Ng Yeong Chong; M/s TS Liew Nurzila & Co Reported by Wan Sharif Ahmad(CLJ)

JUDGMENT

Yeoh Wee Siam J:
 
Plaintiff's Claim
 

[1] The plaintiff's claim in the writ of summons (encl. 1) and amended statement of claim ("amended SOC") (encl. 5) is made under s. 28A of the Civil Law Act 1956 ("the CLA") for, inter alia, general damages, special damages, interests and costs arising out of the plaintiff's personal injury suffered during an accident caused by the alleged negligence of the defendant.

Brief Facts

[2] The plaintiff, a national of Bangladesh, was employed as a factory worker ie, as a printing machine operator at the defendant's printing factory from the month of June 2011 till the time when the accident occurred on 8 December 2011.

[3] The plaintiff was not a foreign worker brought into work in Malaysia by the defendant. The plaintiff was already in Malaysia working in another printing factory prior to his employment with the defendant. The plaintiff came to the defendant's premises sometime in June 2011 asking for a job. He was met by the executive director of the defendant, Beh Wei Chun (DW3).

[4] At that point of time, the Government of Malaysia ("the government"), through its initiative to legalise foreign workers working in Malaysia without a valid working permit, had introduced the 6P Program. Under this program, foreign workers, without a valid working permit (Pekerja Asing Tanpa Izin ("PATI")) but who have submitted an application for a working permit, are allowed to work under the named employer until further instruction from the government.

[5] DW3 decided to employ the plaintiff and had engaged the service of a foreign worker agency, IMI Services Sdn Bhd, to make an application to the government, on behalf of the defendant, to have the plaintiff registered under the 6P Program.

[6] IMI Services Sdn Bhd proceeded to make the 6P Program application for the plaintiff. During this time, the plaintiff was already working at the defendant's printing factory.

[7] On 8 December 2011, the plaintiff was working on a night shift together with another co-worker at the printing machine, known as the Heidelberg Sormz ("the printing machine" or "the machine"), when his right hand was caught between the rollers of the machine. As a result of this industrial accident ("the accident"), the plaintiff suffered an injury which later resulted in the amputation of his right arm from the shoulder.

[8] The plaintiff's claim is that the defendant, as the employer, was negligent because the defendant:

(a) failed to ensure that the machinery in the defendant's factory was in safe working condition;
(b) failed to ensure that proper training was provided to operate and/or repair the machines;
(c) failed to repair the auto stop switches in the machine ("the auto stop switch") that the plaintiff was working on.

[9] The crux of the plaintiff's case is that the defendant had removed the safety grill or grill cover ("the grill cover") from the printing machine that the plaintiff was working on, and despite the plaintiff's repeated requests to replace the grill cover and to repair the auto stop switch, the defendant had failed to do so.

[10] The defendant's defence is that it was the plaintiff who had removed the grill cover and that the plaintiff was working in an area of the machine that was unsafe and therefore the resulting injury was brought on by himself.

Issues

[11] The main issues are:

(a) whether the defendant was negligent;
(b) whether there was contributory negligence by the plaintiff;
(c) whether the plaintiff should be governed by the Workmen's Compensation Act 1952 ("the WC Act") or whether the plaintiff can file these proceedings in court, and the law on compensation or damages applicable in this case.

Whether The Defendant Was Negligent

[12] As provided in ss. 102 and 103 of the Evidence Act 1950, the burden of proof is on the plaintiff to prove the defendant's negligence as alleged.

[13] The plaintiff himself (PW1) was his only witness. He testified that from the start of his work, the printing machine had no grill cover and the auto stop switch was not working. He had raised this issue before with the defendant but the defendant did not install the grill cover and the auto stop switch was still not working. That was why, while working on the machine, the plaintiff's hand got caught in the machine resulting in his arm being crushed and had to be amputated.

[14] The question is whether the grill cover was installed and in place at the machine, and the auto stop switch was in good working condition, when the accident happened to the plaintiff.

[15] The only evidence adduced by the plaintiff of the defendant's negligence is his own oral evidence.

[16] However, the defendant's own witness, Lim Min Long (DW1), the supplier of the printing machine to the defendant, under cross-examination, testified that soon after the accident, when his engineer was asked to check the machine, the engineer found that the grill cover was not on the machine, but it had been taken off. In DW1's own words:

My Engineers, that time Mr. Tan he told me that the grill is not fixing on the machine...
That means the whole grill was not with the machine....
That means that they had already taken out. Once the grill is taken out the safety switch is free and it can be run.

[17] In re-examination, DW1, further stated that after the incident, the grill cover was found somewhere in the factory, and his engineer, Tan Chai Eng ("Tan"), fixed it back onto the machine.

[18] Tan was not called as a witness by the plaintiff and the defendant. From DW1's testimony, the court finds that on the instructions of DW1, Tan had gone to check the machine immediately after the accident. Even without Tan's evidence, the court accepts DW1's evidence since DW1 was Tan's employer and Tan had informed DW1 that the grill cover was not on the machine when he went to check the machine.

[19] According to DW1, the removal of the grill cover is a complicated process and it is done by DW1's engineers. There is no evidence that the plaintiff himself had removed the grill cover. It is not probable that the plaintiff would remove the grill cover considering that he had made repeated requests to the defendant to fix the grill cover.

[20] Counsel for the defendant submitted that the defendant had nothing to benefit from removing the grill cover. I am of the view that, similarly, the plaintiff had nothing to gain from removing the grill cover. From the evidence of the plaintiff and DW1, the court finds that it is more probable that the grill cover was not fixed onto the machine. That is why the accident happened and the plaintiff was injured. If the grill cover had been fixed as required, the accident would not have happened.

[21] The plaintiff did not call his co-worker, who was then working with him, as a witness, to support his evidence. This is because the plaintiff's co-worker is a foreign worker and cannot now be traced. In view of this reasonable excuse, the court does not think that the adverse inference in s. 114(g) of the Evidence Act 1950 should be invoked against the plaintiff.

[22] Even without the co-worker's evidence, the plaintiff is able to have benefit of DW1's evidence which support the plaintiff's allegation that the grill cover was not fixed onto the machine. According to DW1, the accident was caused by the grill cover being taken out, and not because the auto stop switch was faulty.

[23] Heng Bak Hin (DW2), the plaintiff's supervisor at the printing factory for quality control of printed material, informed the court that the machine could not stop automatically when the plaintiff's hand got caught between the rollers because when the grill cover was lifted, the auto stop switch could not work.

[24] Regarding training, the court finds that the defendant did not provide training to the plaintiff on how to operate the machine. This is because, according to DW3, when the plaintiff first approached him asking to be employed, the plaintiff was already experienced in working with printing machines. In fact, the plaintiff was employed in his previous job to operate printing machines. DW3 stated that from the commencement of his employment, the plaintiff was able to operate the defendant's machine on his own.

[25] The court is of the view that since the plaintiff is an experienced printing machine operator, and he was employed by the defendant based on his experience, there is no negligence on the defendant's part in not providing the plaintiff with proper training to work on the defendant's printing machine.

[26] It is to be noted that DW3 admitted that the defendant did not report the accident as required under the Factories And Machineries Act 1967. It was the plaintiff himself who reported the accident to the Department of Safety and Health. The question arises as to why the defendant, as the employer of the plaintiff, failed to report the accident as required by law. Had the defendant reported the accident, proper investigations would have been conducted by the relevant authorities on the matter. Furthermore, under s. 15 of the Occupational Safety and Health Act 1994, "It shall be the duty of every employer and self-employed person to ensure, so far as is practicable, the safety, health and welfare of all his employees."

[27] From the totality of the evidence adduced, on a balance of probabilities, the court is satisfied that the defendant was negligent when it breached its duty of care in not ensuring that, at all times, the grill cover was fixed onto the machine when the plaintiff was working. The plaintiff was injured in the accident as a result of the defendant's breach of duty of care.

Whether There Was Contributory Negligence By The Plaintiff

[28] The plaintiff's accident happened at the back of the machine ie, at the middle portion ("the middle portion"). According to DW1 and DW2, the correct way to clean the paper dust off the machine should be at the front portion of the machine, and not at the middle portion which the plaintiff did. DW1, under cross-examination, stated that the reason why machine operators clean paper dust off the roller at the middle portion of the printing machine is because they are lazy and it is convenient for them.

[29] The plaintiff testified that he was instructed by his supervisor to clean the rollers at the centre portion to prevent wastage of paper and ink. However, this evidence was rebutted by DW1 and DW2 who stated that there would be not much difference in terms of wastage whether machine was cleaned at the front portion or the middle portion of the machine.

[30] DW2, as the plaintiff's supervisor, testified, inter alia :

- That the rollers must not be cleaned at the middle portion of the machine because the machine will not stop even if there is something caught in between the rollers. The back of the machine, ie, at the middle portion, is equipped with a grill cover for the safety of the machine operator and if this grill cover is lifted, the machine could not be switched on. If the grill cover is lifted whilst the machine is running, it will stop automatically.
- The machine operator will not be able to switch on the machine with the grill cover lifted unless the two holes on the machine which are to be filled by part of the grill cover, are stuffed with other items, creating a false indication that the grill cover has been lowered down ie, fixed onto the machine.
- The back part of the grill cover can be lifted for the purposes of taking out the rollers for washing after finishing printing.
- The printing machine has three auto off switches and a safety bar at the roller to avoid accident.
- After the accident, he discovered that the two holes on the plaintiff's printing machine were stuffed with paper.
- DW2 is of the view that the accident would not have occurred if the grill cover was not lifted and that the rollers were cleaned from the front part of the machine.
- DW2 confirmed that the printing machines owned by the defendant are without modifications.
- DW2 personally had seen the plaintiff lifting the grill cover while printing was ongoing on several occasions and had warned him of the danger.

[31] The defendant did not adduce any evidence of DW2 or any other employee of the defendant who, at the material time, had seen the plaintiff lifting the grill cover, or removing it from the machine, to make his job easier, or that he had stuffed paper into the two holes on the machine to enable the machine to continue to run even if the grill cover is lifted or removed from the machine.

[32] As for working at the wrong portion of the machine to clean the rollers ie, at the middle portion, it is highly probable that despite DW2's oral warnings, the plaintiff continued to work at the middle portion since it was easier to do the cleaning. The plaintiff is an experienced printing machine operator. DW2 was only his supervisor for controlling the quality of the printed material, that the printing is clean and good. However, as DW2 stated, DW2 was not the plaintiff's supervisor for safety aspects. The plaintiff, in view of his experience, ought to know that for his own safety, he should be cleaning the rollers at the front portion of the machine rather than at the middle portion, more so when he could see for himself that the grill cover was lifted and not in place and yet because the holes were stuffed with paper, the machine could still run and it would be dangerous and to his detriment if he were to work at that middle portion of the machine. The plaintiff should have heeded DW2's previous oral warnings for his own good. It is highly improbable for DW2 to instruct the plaintiff to work at the middle portion of the machine just because he wanted the printing to be of good quality.

[33] Section 12(1) and (6) of the CLA provide as follows:

Apportionment of liability in case of contributory negligence
12.(1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damage:
(6) In this section "fault" means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence.

[34] The court finds that the plaintiff had partly by his own fault in cleaning the rollers at the wrong portion of the machine, ie, at the middle portion, contributed to the accident. He should be made 50% liable for contributory negligence.

Whether The Plaintiff Should Be Governed By The WC Act Or Whether The Plaintiff Can File These Proceedings In Court, And The Law On Compensation Or Damages Applicable In This Case

[35] The question is whether the plaintiff is a "workman" within the meaning of the WC Act.

[36] The meaning of "workman" is given in s. 2(1) and proviso (a) thereto of the WC Act as follows:

2.(1) In this Act, unless the context otherwise requires, the expression "workman", subject to the proviso to this subsection, means any person who has, either before or after the commencement of this Act, entered into or works under a contract of service or of apprenticeship with an employer, whether by way of manual labour or otherwise, whether the contract is expressed or implied or is oral or in writing, whether the remuneration is calculated by time or by work done and whether by the day, week, month or any longer period:
Provided that the following persons are excepted from the definition of "workman":

(a) Any person employed otherwise than by way of manual labour whose earnings, calculated in accordance with section 9, exceed five hundred ringgit a month'.

[37] In the plaintiff's PATI registration slip under the 6P Program (CBOD part B p. 23), the plaintiff was registered under the Manufacturing Sector (Perkilangan).

[38] In the plaintiff's specialist report dated 14 August 2012 prepared by Dr Chee Chia Shing of Teo Orthopaedic Clinic Sdn Bhd (CBOD Part A pp. 11 and 12), the plaintiff had informed his specialist doctor that he was a factory worker at the material time of the accident.

[39] The defendant, through the evidence of Cindy Mak Kah Wai (DW4), had adduced evidence that the plaintiff was registered as a general worker under the Factory Sector (Perkilangan).

[40] The term "manual labour" has not been defined in the WC Act.

[41] According to the Concise Oxford Dictionary, 9th edn., Thumb Index Edn., the word "manual" means "of or done with the hands", whilst the word "labour" means "physical or mental work; exertion; toil".

[42] Applying the above Oxford Dictionary meanings, the court is of the opinion that the plaintiff does not fall within proviso (a) to s. 2(1) of the WC Act which excludes coverage of non-manual workers earning more than RM500 a month, but instead was employed by the defendant by way of manual labour under the substantive provision of s. 2(1) of the same Act, and earning more than RM500 a month. Accordingly, the plaintiff is governed by the WC Act.

[43] However, according to DW3, until the plaintiff's work permit under the 6P Program was approved by the government, the defendant could not purchase an insurance policy for the plaintiff. This was confirmed by DW4, the foreign worker agent.

[44] It is to be noted that s. 26 of the WC Act makes it mandatory for the employer to insure the plaintiff as his workmen. Section 26(1) and (2) of the Act provide as follows:

Compulsory insurance by employer
26.(1) Every employer shall insure and keep himself insured with an insurer within the meaning of the Insurance Act 1963 [Act 89] in respect of any liability which he may incur under this Act to every workman employed by him.
(2) Notwithstanding subsection (1) the Minister may by order approve an insurance scheme, and upon the coming into force of the order, every employer shall insure and keep himself insured under the approved insurance scheme in respect of any liability which he may incur under this Act to every workman employed by him.

[45] The defendant, as employer, was therefore caught in an ambiguous situation in the interim period until the plaintiff's work permit is approved by the government. Had the defendant insured himself under ss. 26(1) or (2) of the WC Act, then his liability to the plaintiff would have been governed by such insurance policy and the WC Act.

[46] In the absence of any such insurance, the plaintiff is therefore not precluded from filing this claim under s. 28A of the CLA. In fact, even if the plaintiff had been insured by the defendant, the plaintiff is also not precluded from making this civil claim. This is allowed under s. 28A(1)(a) of the CLA which provides:

Damages in respect of personal injury
28A.(1) In assessing damages recoverable in respect of personal injury which does not result in death, there shall not be taken into account:
(a) any sum paid or payable in respect of the personal injury under any contract of assurance or insurance, whether made before or after the coming into force of this Act;

[47] Knowing that the plaintiff could not be insured pending the approval of his work permit, the defendant took a risk in employing the plaintiff. In the absence of any insurance coverage for the plaintiff as a workman, the defendant is liable for damages for the plaintiff's personal injury (see also the decision of Dato Abdul Malik bin Hj Ishak J (as he then was) in Tai Siat Fah (The Lawful Widow and Dependant of Chang Keng Looy, Deceased) & 4 Ors. v. The Lawful Personal Representative of Badrul Hisham bin Hashim [1995] 2 CLJ 649 where it was held, inter alia, that compensation under the WC Act will not bar a dependency claim under s. 7 of the CLA in respect of loss of support and damages for bereavement under s. 7(3A) of the CLA, nor will such compensation be said to be deductible).

[48] However, in determining the quantum of damages to be awarded, this court, while not being bound by the provisions of the WC Act ("the Act") on compensation, in particular ss. 8 and 9 which are relied upon by the defendant, has the discretion to consider the principles contained in the provisions of the Act, as a guide, since the Act applies to plaintiff as a workman. This is for the reason that the Act would have applied to him had the defendant insured him, in which case ss. 8 and 9 of the Act would have applied.

Award On Damages

[49] In view of the earlier finding by this court that the plaintiff is liable for negligence, the damages to be awarded are to be calculated as follows:

Whether Compensation Under The WC Act Should Prevail

[50] Regarding the amount of compensation under the WC Act, the defendant submitted as follows:
Section 8(b) and (c) of the WC provides:

Amount of compensation
8. Subject to this Act the amount of compensation shall be as follows, namely:

(a)...
(b) where permanent total disablement results from the injury:

(i) in the case of an adult who has completed the eighteenth year of his age, a lump sum equal to sixty months earnings or twenty-three thousand ringgit, whichever is the less;
(ii) in the case of any other adult, a lump sum equal to eighty-four months earnings or twenty-three thousand ringgit, whichever is the less; and

(c) where permanent partial disablement results from the injury such percentage of the compensation which would have been payable in the case of permanent total disablement as is proportionate to the permanent loss of earning capacity caused by the injury:

Provided that in the case of an injury specified in the First Schedule the compensation payable shall not be less than such percentage of the compensation which is payable in the case of permanent total disablement as is set opposite to that injury in the said Schedule...

Part II of the First Schedule to the WC Act for "List Of Injuries Deemed To Result In Permanent Partial Disablement" under Serial No. 2 states that for "Amputation below shoulder with stump less than 8" from tip of acromion" the "Percentage of loss of earning capacity is 80%".

[51] The plaintiff's specialist report stated that the plaintiff had suffered amputation of the right upper limb at the level of proximal third of right humerus.

[52] The defendant submitted that the plaintiff is only entitled to compensation under the WC Act as follows:

RM23,000 x 80% = RM18,400.

[53] I have considered the provisions of the WC Act as a guide for this court to determine the amount of compensation to be paid to the plaintiff. However, the court notes that the WC Act was enacted in 1952. Sections 8, 9 and the First Schedule of the Act were last amended by Amendment Act A947 which came into force from 1996. For the past seven years, no amendment had been made to take into account the yearly inflationary rate. In the light of this and, in the interest of justice, I do not think that this court should be bound by the compensation to be awarded under the WC Act, which is unrealistically low and not appropriate for injuries caused in modern day industrial accidents. This is more so considering that the defendant did not insure the plaintiff as required by the Act and the plaintiff's claim in made under the CLA, and not under the WC Act.

General Damages

Pain And Suffering

[54] The undisputed specialist medical report of Dr Chee Chia Shing of Teo Orthopedic Clinic Sdn Bhd (CBOD Part A pp. 11 and 12) states as follows:

Mr Alamgir had sustained severe trauma to his right upper limb as a result of the alleged industrial accident on 8.12.2011.
His crush injury of right upper limb had healed with the following residual disabilities:

(1) Permanent loss of right upper limb due to amputation at the level of proximal third right humerus.
(2) Total loss of function of his right upper limb due to the amputation.

Permanent Disabilities

[55] "The above stated disabilities resulted from the accident and they are permanent disabilities." (emphasis added);

He is not fit to resume his former job as a Factory worker due to his above residual disabilities. (emphasis added).

[56] Based on the guidelines in the Compendium of Personal Injury Awards (2010) (as agreed upon between the Judiciary and the Bar Council) (see Circular No. 258/2010 dated 26 October 2010) at pp. 8 and 9 of the compendium, the court agrees with the plaintiff's submission that an award of RM80,000 is fair and reasonable for the injury and disability suffered by the plaintiff.

Loss Of Earning And Loss Of Earning Capacity

[57] At the time of injury, the plaintiff was 27 years old, married and with one child. As a result of the injury, plaintiff cannot return to his original occupation due the amputation to his right arm.

[58] The plaintiff's loss of amenities, loss of earnings, and future loss of earnings are to be based on the following calculations:

(a)Multiplier

Section 28A(2)(d)(i) of the CLA provides:

28A. (2)(d) in assessing damages for loss of future earnings the Court shall take into account that:

(i) in the case of a person who was of the age of thirty years or below at the time when he was injured, the number of years' purchase shall be 16;";

The multiplier is 16 years of purchase.
16 x 12 months per year = 192 months;

(b) Multiplicand

Plaintiff's average salary (as pleaded and as evidenced by his payslips)	RM3,014.37
Less 1/3 deduction from RM3,014.37 for plaintiff's own living expenses	RM1,004.79
Less current salary	RM 900
	RM1,109.58;

(c) 192 months x RM1,109.58 = RM213,039.36;

100% liability

[59] On the basis of 100% liability, the claim to be allowed should be as follows:

(a) General Damages

(i)	Permanent Disability Pain and Suffering	RM 80,000.00;
(ii)	Loss of Amenities, Loss of Earnings and Loss of Future Earnings	RM213,039.36;

(b) Special Damages

(i) Fees for Expert Medical Report RM530

50% liability

[60] In view of the 50% contributory negligence by the plaintiff, the sums to be awarded should be reduced by 50%.

Decision

[61] Based on the above considerations, the court allows the plaintiff's claim in prayer 9 of the amended SOC as follows:

(a) General damages:

(i)	Permanent Disability and Pain and Suffering	RM 40,000.00
(ii)	Loss of Amenities, Loss of Earnings and Loss of Future Earnings	RM106,519.68

(b) Special damages RM 265.00
(c) Interests at 5% per annum from the date of filing of the writ of summons until the date of full realisation;
(d) Costs of RM20,000.

[2014] 1 LNS 90

Mahkamah buat keputusan bersejarah - pemimpin kesatuan sekerja NUFAM dibuang kerja secara salah oleh MAS

Ya, Mahkamah Tinggi telah memutuskan bahawa Ismail Nasaruddin(yang juga Presiden NUFAM) telah dibuang kerja secara salah, justeru kes itu juga di rujuk kembali untuk gantirugi/pampasan ditaksirkan. (Kita menunggu keputusan bertulis kes ini, untuk analisa dan perbincangan lanjut).

Apakah salahlaku yang MAS mendakwa telah dilakukan oleh Ismail? (Lihat di bawah, petikan penghakiman Mahkamah Perusahaan yang menyatakan apakah dakwaan MAS)

[5] On 08.11.2013, it was brought to the Company's attention that The Sun newspaper was carrying an article on the National Union of Flight Attendants Malaysia's (NUFAM ) call for the resignation of the Company's Chief Executive Officer (COB page 4). The said published article referred to an interview of the Claimant conducted with Sunbiz; whereby the said article also made reference to a press statement issued by NUFAM. The article also raised various other allegations against the Company. At the material time, the Claimant was the President of NUFAM and a member of its Executive Committee.

[6] Consequently, the Company issued a letter of suspension dated 08.11.2013 to the Claimant; suspending his services pending further investigations (COB pages 5-6). At that material time, the Company was also investigating press releases published in The Sun on 29.10.2013 and 04.11.2013.

[7] The Company, after due investigation, issued a show cause letter dated 12.11.2013 to the Claimant (COB pages 7-10) for the following allegations:-

"Allegation 1

The Sun, in a report appearing on 8.11.2013, inter alia stated,

"The National Union of Flight Attendants Malaysia (Nufam), which represents 3,500 cabin crew at Malaysia Airlines (MAS), has called on the national carrier's CEO Ahmad Jauhari Yahya to resign saying he had failed to resolve their plight since he took over the helm in September, 2011. In a statement yesterday, Nufam Secretariat said it is calling on the prime minister to review Jauhari's contract and remove him as the CEO of MAS, which is a government appointed position, unhappy that there has been no changes in resolving the cabin crew's problems and they are have become demoralized. 'Three years is long enough to observe how a CEO of a GLC (government-linked company) takes seriousness and consideration into the cabin crew's issues, it said. 'The management have cut costs drastically on the cabin crew and did not bother to review their allowances and salaries," it further claimed" [sic].

Although you may be the President of NUFAM, you are first and foremost an employee of Company and owe a duty and responsibility to Company as such. The Company holds you responsible for the foregoing statement/press release by Nufam, of which you are its President. The contents of the foregoing statement/press release are baseless, insolent and publicly damaging and your conduct in allowing the release of the said statement - calling for, among others, the resignation of the Company's Chief Executive Officer and further making reference to employees' allowances and salaries which are strictly internal and confidential matters - to be tantamount to a serious act of misconduct.

Allegation 2

You had, vide the same report appearing in The Sun on 8.11.2013, been quoted following your interview with SunBiz, as inter alia stating:-

• "They (MAS management) said they had discussed with Maseu before putting these changes into the CA, but the discussions are behind Nufam's back"... "It was not done in fairness and is a form of discrimination against employees. This is also the first time they are picking on this (weight control) issue", in relation to various terms and conditions which had been agreed to by all relevant parties and subsequently incorporated into Collective Agreement Cognizance No. 001/2013, thereby creating disharmony amongst the cabin crew fraternity which would have had access to the aforesaid newspaper report.
• "The crew are overworked and Nufam has raised these concerns with MAS. These are fatigue issues concerning the safety and welfare of employees... we request that the DCA monitor the work schedules of cabin crew", in relation to the cabin crew work schedules which had been discussed by the Company with the Department of Civil Aviation (DCA) and approved by the DCA; thereby creating disharmony amongst the cabin crew fraternity and concerns on safety amongst the public, which would have had access to the aforesaid newspaper report.
• "Nufam wants the airline to straighten out its policies. All policies concerning cabin crew must be regulated. The welfare and safety of the cabin crew must be looked into by the government", giving rise to the inference in the view of the public - which would have had access to the aforesaid newspaper report - that the Company neglects and compromises the welfare and well-being of its employees.

The Company deems the foregoing conduct serious acts of misconduct.

Your foregoing actions are tantamount to a breach of your implied term of employment / fiduciary duty to serve the Company with good faith and fidelity and further a breach of your express terms of employment as stated in Clause 12, Appendix I of the MAS Book of Discipline as well as the procedures governing grievance procedures pursuant to the Collective Agreement (Cognizance No. 001/2013)."

[8] The Claimant replied to the show cause letter vide a letter dated 16.11.2013 (COB pages 11-12). In his reply, the Claimant did not deny the allegations which had been levelled against him and instead merely took the position that the press statements had been made by virtue of his position as the President of NUFAM and not in his capacity as a Chief Steward of the Company.

[9] Dissatisfied with the Claimant's explanation, the Company issued a letter of dismissal dated 29.11.2013 dismissing the Claimant with immediate effect; as the Company could no longer repose the necessary trust and confidence to maintain the Claimant in its employment (COB pages 13-15).
[10] Subsequently, the Claimant appealed against the Company's decision to dismiss him vide a letter dated 05.01.2014 (COB pages 35-36). The Company responded vide a letter dated 05.02.2014, informing the Claimant that his appeal was dismissed (COB pages 37). - dipetik daripada Penghakiman peringkat Mahkamah Perusahaan - AWARD NO. 562 OF 2019)

Memang, saudara Ismail adalah Presiden Kesatuan TETAPI bukankah setiap pekerja mempunyai hak bersuara, menyatakan pendapat, menghebohkan kekurangan atau 'salahlaku' majikan, berjuang untuk membela hak dan juga mempromosi(atau menambahkan) hak pekerja? 

Dari 'salahlaku kerja' yang digunakan oleh MAS dalam kes ini, majikan ini nampaknya berpendirian bahawa pekerja, termasuk juga Kesatuan Sekerja, melakukan kesalahan kerja (atau pengingkaran kontrak pekerjaan) jika pekerja menghebohkan kekurangan, atau 'salah laku' majikan kepada orang lain atau rakyat umum - kerana pekerja tidak ada hak berbuat demikian sebagai pekerja. Ini karut dan juga bercanggah dengan undang-undang negara yang bukan sahaja menjamin hak bersuara, hak berpendapat...Dalam undang-undang kerja, pekerja ada hak PIKET - di mana dalam piket pekerja dikhalayak ramai ada hak untuk menghebohkan apa yang dikakatan salahlaku atau ketidakadilan majikan demi menjana sokongan rakyat umum...di mana ini adalah strategi memberi tekanan kepada majikan untuk menerima tuntutan pekerja...[PIKET tidak boleh dilakukan dalam tempat kerja, biasanya di luar tepi jalan...]

Ya, ini hak pekerja - pekerja bukan 'hamba' kerja saja tanpa menghebohkan salahlaku majikan...

Jika pekerja atau ahli kesatuan menyatakan sesuatu yang salah atau palsu yang menjejaskan imej atau nama baik syarikat majikan - ini tidak harus dijadikan 'salahlaku kerja' atau 'pengingkaran kontrak' untuk membuang kerja. Majikan mungkin boleh memulakan saman malu...tetapi seharusnya tidak boleh buang kerja.

Tugas pekerja adalah untuk melakukan pekerjaan BUKAN sama sekali untuk menjaga 'imej' atau 'nama baik' pekerja... Itu mungkin boleh dikatakan tanggungjawab pekerja yang diupah khusus untuk menjaga imej syarikat...tetapi bukan sama sekali tanggungjawab semua pekerja yang lain.

MAS juga cuba mengatakan salah laku dilakukan kerana Ismail tidak mengikut 'prosidur ketidakpuas hati pekerja'(grievance prosidur)...Nampaknya apa yang dirujuk oleh MAS adalah sekiranya pekerja tidak puas hati...mula-mula beritahu 'supervisor'...selepas beberapa hari, boleh beritahu 'manager'...selepas beberapa hari boleh beritahu 'CEO' dan sebagainya...Mengenai setengah isu berkenaan kerja spesifik, mungkin boleh guna tetapi bilanya isu yang lebih umum melibatkan saudara pekerja lain atau sebahagian pekerja ...saperti pencabulan hak. Jika majikan tak bayar gaji, adakah lojik aduan dulu kepada 'supervisor',,tunggu dua minggu adu kepada 'pengurus bahagian'...tunggu dua minggu lagi adu kepada 'CEO'...Oh tidak - ia hanya membawa kepada ketidakadilan kepada pekerja dan melenggahkan keadilan...adu saja terus kepada Pejabat Buruh...atau polis...atau Menteri...atau piket/protes...[Kalau ikut 'prosidur grievance', ia hanya membenarkan majikan meneruskan ketidakadilan lagi lama...

"Grievance Prosidur' ini yang juga terkandung dalam Perjanjian Bersama(Collective Bargaining Agreement) berat sebelah memihak majikan...Kalau majikan ada aduan atau 'grievance' terhadap pekerja, majikan terus ambil tindakan disiplin...Adil jika majikan ada
aduan atau 'grievance', yang merupakan ahli kesatuan, majikan harus mula-mula bawa kepada perhatian wakil kesatuan peringkat syarikat...selepas itu kepada wakil kesatuan pusat dan seterusnya ...Ini mungkin lebih ADIL ...tetapi adakah mana-mana CBA emngandungi klausa sedemikian di Malaysia...justeru mengapa Kesatuan Sekerja setuju majikan memasuki 'Grievance Prosidur' berat sebelah memihak majikan sahaja? Kini, MAS nampaknya juga mengunakan alasan 'tak guna 'grievance prosidur' ini' sebagai salahlaku?

Adakah pekerja atau kesatuan ada hak minta syarikat Majikan tukar pengurus atau CEO? Ya, mereka ada hak menuntut majikan menukar mana-mana ejen atau pekerja atau 'wakil' majikan - tetapi ini hanya 'pendapat'...dan majikan boleh menimbangkan dan melakukan tindakan sewajarnya ...

Dalam prosiding Mahkamah, setengah isu ditimbulkan ...setengah tidak ditimbulkan ...kadang bergantung kepada pekerja(atau peguam)...Jika isu ditimbulkan, mungkin Mahkamah akan menyatakan pendapat tentang isu itu...atau tidak...

Saya kini ada Penghakiman Mahkamah Perusahaan - yang saya salinkan di bawah untuk mereka yang berminat membaca...Kita masih menunggu alasan penghakiman Mahkamah Tinggi yang telah mengetepikan Penghakiman Mahkamah Perusahaan dan berkeputusan bahawa Ismail dibuang kerja secara salah...

Jika dibaca, Penghakiman Mahkamah Perusahaan, satu isu yang timbul adalah apakah yang majikan menetapkan sebagai salahlaku kerja dalam 'MAS Book of Discipline' - kenapa pekerja atau Kesatuan gagal mencabar 'salahlaku kerja' yang terkandung yang tidak adil atau munasabah ...atau yang kurang jelas. Contohnya, obligasi mendapat kebenaran terdahulu majikan sebelum boleh menghebohkan atau menyatakan salahlaku majikan atau perkara yang menjejaskan 'imej' syarikat majikan > ...Sedih sekali banyak Kesatuan menerima buta sahaja semua terkandung dalam Handbook Majikan - ada juga yang mengesahkan penerimaan bulat Handbook dalam Perjanjian Bersama...Seorang pekerja bila masuk kerja pun tidak ada 'capacity' tetapi bila ada Kesatuan, ada peluang untuk mengubah apa yang yang boleh diterima sebagai salahlaku dan menolak mana-mana yang dianggap sebagai tak patut, tak adil atau langsung tak jelas. Apakah hukuman bila melakukan kesalahan tertentu...amaran, denda, turun pangkat...Setengah kesalahan seharusnya tidak harus boleh dikenakan hukuman buang kerja...

Lihat sahaja undang-undang negara - bukan sahaja kesalahan dinyatakan tetapi juga hukuman yang boleh dikenakan jika kesalahan itu dilakukan. Tidakkah Kesatuan berjuang membatalkan 'salah laku' tidak adil ...Rakyat Malaysia berjuang dan kini ISA sudah dimasnsuhkan - sama juga, Kesatuan dan Pekerja boleh berjuang mengeluarkan 'salahlaku' yang tak adil dalam 'Handbook Disiplin Majikan'...Mungkin masa depan akan lihat pekerja dan Kesatuan yang lebih 'bijak' berbuat demikian terlebih dahulu..

.....NUFAM, kesatuan baru, mungkin belum lagi masuk Perjanjian Bersama tetapi bila mereka berbuat demikian, harapan adalah mereka akan pastikan 'kesalahan' saperti perlu dapat kebenaran Majikan sebelum menyuarakan pendapat atau menghebohkan ketidakadilan akan dibuang....???

...Kritikan adalah berkaitan CEO - yang merupakan 'pekerja Majikan' - dia bukan Majikan. Selaku pekerja majikan, syarikat Majikan(sama ada Badan Pengarah atau pemegang saham syarikat) boleh mengeluarkan CEO dan mengantikan dengan orang lain. Pekerja sememangnya boleh menyatakan pendapat mereka kepada MAJIKAN untuk mengeluarkan atau mengawal mana-mana pekerja termasuk CEO juga...

BERTINDAK AWAL sebelum terlewat...

Pekerja dan Kesatuan Sekerja juga harus menyedari bahawa kes boleh di bawa kepada Mahkamah Tinggi dan Mahkamah Sivil - bukan sahaja kepada Mahkamah Perusahaan atau Mahkamah Buruh.

Contohnya kegagalan mengadakan Domestic Inquiry(Siasatan Dalaman) - ini merupakan pengingkaran kontrak...jelas Mahkamah Perusahaan sudah berkali-kali menyatakan bahawa isu ini bukan bawah bidangkuasa Mahkamah ini - justeru, pekerja mungkin perlu pergi ke Mahkamah Tinggi, yang mempunyai bidangkuasa yang lebih luas...Jika Kontrak menyatakan perlu ada 'Domestic Inquiry' sebelum pekerja dihukum atau dibuang kerja ...boleh dihujahkan pembuangan kerja tanpa ada Domestic Inquiry adalah tidak sah...tak kira apakah salahlaku yang diadu majikan...? Justeru, majikan mungkin akan perlu mengambil kerja kembali dan mengadakan Domestic Inquiry sebelum boleh buang kerja...Banyak kemungkinan??? Boleh berjaya atau tidak? Belum cuba belum tahu dan Mahkamah Malaysia akan bertindak adil...

Di Indonesia, bila dibuang kerja dan dibawah kepada Mahkamah Perusahaan(atau proses pengadilan), Majikan akan terpaksa terus memberi kerja dan bayar gaji pekerja, dan pekerja terpaksa terus masuk pekerja sehingga Mahkamah memutuskan sama pekerja dibuang kerja atau tidak. [Ini juga termaktub dalam Undang-Undang Indonesia - kenapa tak lagi dalam Undang-undang Malaysia}

Persoalan sama ada hak pekerja terus dapat kerja dan gaji ini kepal sampai ke peringkat Mahkamah Rayuan terakhir, juga mendapatkan keputusan Mahkamah positif...YA, kini di Indonesia dalam kes buang kerja secara salah...majikan harus terus beri kerja dan gaji, dan pekerja harus terus masuk kerja > Jika majikan tak mahu ber kerja, majikan masih terus terpaksa bayar gaji saperti biasa..

Ini juga akan memastikan kes pembuangan kerja akan cepat dijalan dan habis ...bukan saperti ini di mana Presiden NUFAM di buang kerja November 2013(lebih kurang 6 tahun dahulu)... 

' the Company issued a letter of dismissal dated 29.11.2013 dismissing the Claimant with immediate effect;...'

 

Mahkamah buat keputusan bersejarah sokong pemimpin kesatuan sekerja dipecat MAS

V Anbalagan

-

September 4, 2019 6:11 PM

Hakim Mahkamah Tinggi mengarahkan MAS membayar pampasan kepada Ismail Nasaruddin yang dipecat secara salah pada 2013. (Gambar Facebook)

KUALA LUMPUR: Mahkamah Tinggi di sini memutuskan Malaysia Airline System Bhd (MAS) menyalahi undang-undang dengan memecat seorang pemimpin kesatuan sekerja kerana mengeluarkan kenyataan bagi menyuarakan aduan pekerja dan menggesa ketua pegawai eksekutifnya meletak jawatan.

Hakim Nordin Hassan berkata, tidak adil untuk MAS memecat Ismail Nasaruddin yang merupakan presiden Kesatuan Kebangsaan Anak Kapal Kabin Penerbangan Malaysia (Nufam) kerana beliau menerima wawancara media ketika kesatuan sekerja itu mengadakan aktivitinya.

“Alasan sebenar MAS memecat Ismail ialah penyertaannya dalam aktiviti kesatuan sekerja yang dilarang undang-undang,” katanya yang membenarkan permohonan semakan kehakiman difailkan Ismail.

Hakim turut membatalkan keputusan Mahkamah Perusahaan dan mengarahkan pampasan diberikan kepada Ismail kerana dipecat secara salah.

Mahkamah Perusahaan akan menilai jumlah pampasan bagi menggantikan pengembalian jawatan kepada Ismail.

Pada 2013, Ismail membenarkan The Sun Daily mewawancaranya untuk menyuarakan kebimbangan pekerja atas dakwaan kerja berlebihan, gaji rendah, isu kesihatan dan keselamatan akibat pengaturan semula pesawatnya serta arahan penurunan berat badan.

MAS mendapati ia melanggar tanggungjawab Ismail dalam syarikat itu dan memecatnya.

Ismail kemudiannya ke Mahkamah Perusahaan untuk mendapatkan semula jawatannya, tetapi awal tahun ini, tribunal itu memihak kepada keputusan MAS atas pemecatan Ismail.

Peguam, Lim Wei Jiet yang mewakili Ismail menyifatkan ia adalah kes bersejarah kerana Mahkamah Tinggi pertama kali memutuskan salah untuk syarikat memecat seorang pemimpin kesatuan sekerja kerana mengeluarkan kenyataan media ketika melakukan kerja kesatuan.

“Pemimpin kesatuan sekerja memainkan peranan penting dalam memperjuangkan keadaan kerja lebih baik bagi berjuta pekerja di Malaysia, yang sering mempertaruhkan kerja dan mata pencarian mereka.

“Amat gembira untuk tahu Mahkamah Tinggi memberikan sokongan kepada individu berani ini.”

Lim berharap keputusan ini akan memperkasakan pemimpin kesatuan sekerja untuk berani mempertahankan hak pekerja dan melindungi mereka daripada syarikat yang menyalahi undang-undang dengan bertekad mengawal aktiviti kesatuan. - FMT, 4/9/2019

 

 

INDUSTRIAL COURT MALAYSIA [CASE NO: 7/4-617/14] BETWEEN ISMAIL NASARUDDIN ABDUL WAHAB AND MALAYSIAN AIRLINE SYSTEM BERHAD AWARD NO. 562 OF 2019 BEFORE : Y.A. PUAN JAMHIRAH ALI CHAIRMAN VENUE : Industrial Court Malaysia, Kuala Lumpur. DATE OF REFERENCE : 08.08.2014. DATES OF MENTION : 08.10.2014, 10.12.2014, 05.01.2015, 26.03.2015, 30.06.2015, 09.12.2015, 30.05.2016, 24.11.2016, 15.06.2017, 21.03.2017, 28.06.2018. DATES OF HEARING : 28.04.2015, 02.10.2017, 22.11.2017, 23.11.2017. DATES OF CLAIMANT'S WRITTEN SUBMISSION : 22.01.2018 & 30.04.2018. DATES OF COMPANY'S WRITTEN SUBMISSION : 14.03.2018 & 14.06.2018. >DATE OF ORAL SUBMISSION : 30.05.2018. REPRESENTATION : For the claimant - Chandra Segaran; M/s Prem & Chandra For the company - N Sivabalah (Jamie Goh with him); M/s Shearn Delamore & Co REFERENCE: This case was referred to the Industrial Court on 08.08.2014 by the Honourable Minister of Human Resources pursuant to subsection 20(3) of the Industrial Relations Act 1967 [Act 177] ("IRA") arising from the dismissal of Ismail Nasaruddin bin Abdul Wahab ("the Claimant") by Malaysian Airline System Berhad ("the Company") on 29.11.2013. AWARD PROLOGUE [1] The hearing of this case commenced on 28.04.2015 with the Company's case. The Company produced 3 witnesses (COW1, COW2 and COW3); and the Claimant produced 2 witnesses (CLW1 and CLW2). The Claimant's Written Submission and Bundle of Authorities were filed on 22.01.2018 and 30.04.2018; and the Company's Written Submission and Bundle of Authorities were filed on 14.03.2018. The Oral Submissions were heard on 30.05.2018. The Company then filed further Written Submission and Bundle of Authorities on 14.06.2018; and on the mention date fixed on 28.06.2018, the learned Counsel for the Claimant informed this Court that the Claimant had no further submission. FACTS [2] The Claimant commenced employment with the Company as a Trainee Flight Steward with effect from 06.03.1989. Subsequently, the Claimant was appointed as a Flight Steward with effect from 12.05.1989, whereby he was placed on probation for 4 months and thereafter he was confirmed in his position as a Flight Steward. Later, on 14.08.1995, the Claimant was promoted to the position of Leading Steward and was thereafter confirmed in this position on 14.11.1995. [3] Sometime in 1996, the Claimant was re-assigned from a Leading Steward attached to a Narrowbody aircraft, to a Leading Steward attached to a Widebody aircraft. It was a lateral reassignment with no changes to the Claimant's terms and conditions of appointment save that the Claimant was entitled to a higher allowance. [4] The Claimant was thereafter promoted to the position of Chief Steward on 08.12.1997. On 03.08.2003, the Claimant was demoted from Chief Steward to Leading Steward, for making statements pertaining the Company to the media. However, the Claimant was subsequently reinstated to the position of Chief Steward on 07.06.2007. [5] On 08.11.2013, it was brought to the Company's attention that The Sun newspaper was carrying an article on the National Union of Flight Attendants Malaysia's (NUFAM ) call for the resignation of the Company's Chief Executive Officer (COB page 4). The said published article referred to an interview of the Claimant conducted with Sunbiz; whereby the said article also made reference to a press statement issued by NUFAM. The article also raised various other allegations against the Company. At the material time, the Claimant was the President of NUFAM and a member of its Executive Committee. [6] Consequently, the Company issued a letter of suspension dated 08.11.2013 to the Claimant; suspending his services pending further investigations (COB pages 5-6). At that material time, the Company was also investigating press releases published in The Sun on 29.10.2013 and 04.11.2013. [7] The Company, after due investigation, issued a show cause letter dated 12.11.2013 to the Claimant (COB pages 7-10) for the following allegations:- "Allegation 1 The Sun, in a report appearing on 8.11.2013, inter alia stated, "The National Union of Flight Attendants Malaysia (Nufam), which represents 3,500 cabin crew at Malaysia Airlines (MAS), has called on the national carrier's CEO Ahmad Jauhari Yahya to resign saying he had failed to resolve their plight since he took over the helm in September, 2011. In a statement yesterday, Nufam Secretariat said it is calling on the prime minister to review Jauhari's contract and remove him as the CEO of MAS, which is a government appointed position, unhappy that there has been no changes in resolving the cabin crew's problems and they are have become demoralized. 'Three years is long enough to observe how a CEO of a GLC (government-linked company) takes seriousness and consideration into the cabin crew's issues, it said. 'The management have cut costs drastically on the cabin crew and did not bother to review their allowances and salaries," it further claimed" [sic]. Although you may be the President of NUFAM, you are first and foremost an employee of Company and owe a duty and responsibility to Company as such. The Company holds you responsible for the foregoing statement/press release by Nufam, of which you are its President. The contents of the foregoing statement/press release are baseless, insolent and publicly damaging and your conduct in allowing the release of the said statement - calling for, among others, the resignation of the Company's Chief Executive Officer and further making reference to employees' allowances and salaries which are strictly internal and confidential matters - to be tantamount to a serious act of misconduct. Allegation 2 You had, vide the same report appearing in The Sun on 8.11.2013, been quoted following your interview with SunBiz, as inter alia stating:- • "They (MAS management) said they had discussed with Maseu before putting these changes into the CA, but the discussions are behind Nufam's back"... "It was not done in fairness and is a form of discrimination against employees. This is also the first time they are picking on this (weight control) issue", in relation to various terms and conditions which had been agreed to by all relevant parties and subsequently incorporated into Collective Agreement Cognizance No. 001/2013, thereby creating disharmony amongst the cabin crew fraternity which would have had access to the aforesaid newspaper report. • "The crew are overworked and Nufam has raised these concerns with MAS. These are fatigue issues concerning the safety and welfare of employees... we request that the DCA monitor the work schedules of cabin crew", in relation to the cabin crew work schedules which had been discussed by the Company with the Department of Civil Aviation (DCA) and approved by the DCA; thereby creating disharmony amongst the cabin crew fraternity and concerns on safety amongst the public, which would have had access to the aforesaid newspaper report. • "Nufam wants the airline to straighten out its policies. All policies concerning cabin crew must be regulated. The welfare and safety of the cabin crew must be looked into by the government", giving rise to the inference in the view of the public - which would have had access to the aforesaid newspaper report - that the Company neglects and compromises the welfare and well-being of its employees. The Company deems the foregoing conduct serious acts of misconduct. Your foregoing actions are tantamount to a breach of your implied term of employment / fiduciary duty to serve the Company with good faith and fidelity and further a breach of your express terms of employment as stated in Clause 12, Appendix I of the MAS Book of Discipline as well as the procedures governing grievance procedures pursuant to the Collective Agreement (Cognizance No. 001/2013)." [8] The Claimant replied to the show cause letter vide a letter dated 16.11.2013 (COB pages 11-12). In his reply, the Claimant did not deny the allegations which had been levelled against him and instead merely took the position that the press statements had been made by virtue of his position as the President of NUFAM and not in his capacity as a Chief Steward of the Company. [9] Dissatisfied with the Claimant's explanation, the Company issued a letter of dismissal dated 29.11.2013 dismissing the Claimant with immediate effect; as the Company could no longer repose the necessary trust and confidence to maintain the Claimant in its employment (COB pages 13-15). [10] Subsequently, the Claimant appealed against the Company's decision to dismiss him vide a letter dated 05.01.2014 (COB pages 35-36). The Company responded vide a letter dated 05.02.2014, informing the Claimant that his appeal was dismissed (COB pages 37). LAW [11] The role of the Industrial Court was lucidly explained by His Lordship Raja Azlan Shah CJ (Malaya) (as His Royal Highness then was) in Goon Kwee Phoy v. J & P Coats (M) Bhd. [1981] 1 LNS 30; [1981] 1 MLJ 129 at page 136 (Federal Court) as follows: "Where representations are made and are referred to the Industrial Court for enquiry, it is the duty of the court to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason or excuse for the action taken by him, the duty of the Industrial Court will be to enquire whether that reason or excuse has or has not been made out. If it finds as a fact that it has not been proven, then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse. The proper enquiry of the court is the reason advanced by the employer, and that court or the High Court cannot go into another reason not relied on by the employer, or find one for him". [12] The Federal Court in Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn. Bhd. & Another Appeal [1995] 3 CLJ 344 at page 352 succinctly stated the function of the Industrial Court in dealing with dismissal cases as follows: "On the authorities, we were of the view that the main and only function of the Industrial Court in dealing with a reference under s. 20 of the Act (unless otherwise lawfully provided by the terms of the reference) is to determine whether the misconduct or irregularities complained of by the management as the grounds of dismissal were in fact committed by the workman, and if so, whether such grounds constitute just cause or excuse for the dismissal". [emphasis added] [13] The said principle was reiterated in Milan Auto Sdn. Bhd. v. Wong Seh Yen [1995] 4 CLJ 449at page 454 and 455 (Federal Court), where His Lordship Mohamed Azmi FJ said: "As pointed out by this Court recently in Hong Leong Assurance Sdn. Bhd. v. Wong Yuen Hock [1995] 2 MLJ 753, the function in the Industrial Court in dismissal cases on a reference under section 20 is two-fold: first to determine whether the misconduct complained of by the employer has been established and secondly to determine whether the proven misconduct constitutes just cause or excuse for the dismissal of the employee". [emphasis added] [14] The standard of proof applicable to dismissal cases is the civil standard of proof on a balance of probabilities as decided by the Court of Appeal in Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ 314 as follows: "Thus, we can see that the preponderant view is that the Industrial Court, when hearing a claim of unjust dismissal, even where the ground is one of dishonest act, including "theft", is not required to be satisfied beyond reasonable doubt that the employee has "committed the offence", as in a criminal prosecution... In our view the passage quoted from Administrative Law by H. W. R. Wade & C. F. Forsyth offers the clearest statement on the standard of proof required, that is the civil standard based on balance of probabilities, which is flexible, so that the degree of probability required is proportionate to the nature and gravity of the issue". [emphasis added] ISSUES [15] There was no dispute as to the fact that the Claimant was dismissed. This Court has to consider whether the charges preferred against the Claimant have been proven; and if so, based on the evidence adduced, whether the charges are sufficiently serious to amount to just cause and excuse to warrant the Claimant's dismissal by the Company. EVALUATION OF EVIDENCE [16] I shall now analyse the issues and evaluate the evidence adduced in this case. In doing so I have taken into consideration all the oral and documentary evidence that was adduced before this Court and all the issues raised and discussed in the written and oral submissions, including the legal authorities filed by both the Claimant's and the Company's Counsel. THE COMPANY'S CASE [17] The Company's case against the Claimant was that the Claimant had made press statements about the Company without having obtained the prior consent of the Company in writing. The allegations are as stipulated in the show cause letter dated 12.11.2013 (COB pages 7-10). [18] The Company also contended that Clause 12, Appendix 1 of the Malaysian Airline System Berhad Book of Discipline (COB page 31) provided:- "Publishing or circulating any article, book, photograph or letter or giving any interview or broadcast whether online or through any other media or making statements to the press or delivering any lecture or speech on any matter which concerns the duty or business of the Company without having obtained the prior consent of the Company in writing." [19] The Company stated that vide the Claimant's response dated 16.11.2013 (COB pages 11-12), the Claimant did not deny the allegations which had been levelled against him and instead merely took the position that the press statements had been made by virtue of his position as the President of NUFAM and not in his capacity as a Chief Steward of the Company, "That I, Ismail Nasaruddin Bin Abdul Wahab S/No: 137295 deny the followings: 1. Did not make media statements in a capacity of a Chief Steward of Malaysia Airlines against the company. 2. All media statements quoted of my position as President of National Union of Flight Attendants Malaysia, not as Chief Steward of Malaysia Airlines..." [emphasis added] [20] Further, during cross-examination, the Claimant had confirmed that under the Company's Book of Discipline, employees are not allowed to make any public statements to the press/media without the prior consent of the Company. The Claimant further confirmed that at all times in 2013, he was an employee of the Company. The Claimant also did not dispute that the press statements were made by him. The Claimant's responses during cross examination were as follows, "Q : Refer to pages 9-11 of CLB. Agree that at the time the report was published, you were an employee of MAS? A : I was still an employee. Q : It is your defence that this interview and statement was not made in your capacity as an employee but as president and member of NUFAM? A : Yes. Q : Agree that the basis of the first charge against you in the show cause letter at page 7 of the COB was that you were responsible for the press statement issued by NUFAM Secretariat by virtue of your position as president of NUFAM? A : Yes. Q : Agree that the 2nd charge at page 8 of the COB relates to the statements you yourself made to the reporter of the article? A : Yes." [21] The Company also submitted that during the cross-examination of the Company's witnesses, it was never suggested that the Claimant did not make the press statements or issued the NUFAM statement. [22] Further, the Company stated that based on Clause 12, Appendix 1 of the Malaysian Airline System Berhad Book of Discipline (COB page 31), it was incumbent upon the Claimant to have first obtained written consent from the Company prior to giving any forms of interview or making statements to the press. Referring to the Claimant's answers during cross-examination, the Company asserted that the Claimant was in fact aware that employees are not allowed to make any public statements to the press/media without the prior consent of the Company however, the Claimant still went on to make the press statements in question which also raised various allegations against the Company. The Company submitted that the Claimant had blatantly breached the express regulations of the Company in those instance. [23] The Company further contended that Article 13 of the prevailing Collective Agreement (Cognizance No. 001/2013) (COB page 33) provided:- "It is the desire of both parties to the Agreement that grievances arising between an employee and the Company or between the Union and the Company be settled as equitably and as soon as possible. In pursuance of this mutual desire, it is agreed that grievances should be processed in accordance with the procedure set out in sub-article (3) of this Article with an aim of reaching agreement at the lowest possible level and maintaining continuous good relations between both parties." [24] The Company stated that during cross-examination the Claimant had confirmed that in 2013 even though NUFAM had obtained recognition, the collective agreement which was applicable in the Company was the collective agreement between the Company and Malaysian Airline System Employees' Union Peninsular Malaysia to all employees under the scope (COB3). The Claimant further had confirmed that under Article 27 of the said collective agreement, employees are not permitted to make any statements or give any interviews to the media without the Company's consent. In addition, the Claimant agreed that, the fact that he was a member and president of NUFAM did not exclude him from the applicability of the provisions of the Company's handbook and collective agreement. [25] The Company submitted that in the instant case, the Claimant should have employed the grievance procedure as set out in Article 13 of the prevailing collective agreement instead of raising the issues which he / the Union had against the Company in public. One Nor Azuan Ismail (COW1), the Company's Manager, Strategic People Management, confirmed that NUFAM can espouse any trade disputes through MASEU. It was also pertinent to note that the Claimant agreed under cross-examination that if there are any issues or grievances in the workplace that the said Article 13 would have to be invoked and that if there was no resolution, the matter should be referred to the Industrial Relations Department. [26] Therefore the Company submitted that in view of the foregoing, the allegations levelled against the Claimant had been established. THE CLAIMANT'S CASE [27] The Claimant admitted that he was the President of NUFAM at the material time. The Claimant contended that NUFAM was espousing the plight of the cabin crew employed in the Company. The Claimant alleged that his dismissal was to muzzle NUFAM, an act of "Union Busting" which complaint together with other trade disputes have been filed with the Industrial Relations Department Malaysia (CLB pages 69-73) and some of which the Honourable Minister of Human Resources had since referred to the Industrial Court for adjudication. The Claimant further alleged that the Company was discriminatory against the Claimant in favour of MASEU Union officials who had also made press statements calling for amongst others, the removal of the Chief Executive Officer of the Company but however, no action was taken against those officials. [28] The Claimant further contended that NUFAM Secretariat had issued a press statement calling for the resignation of the CEO of MAS Ahmad Jauhari, and the said statement was published by the Sun Daily on 08.11.2013. (CLB pages 9-11). NUFAM Secretariat had called on the Prime Minister to review Ahmad Jauhari's contract and remove him as the CEO of MAS. [29] The Claimant stated that there were ongoing trade disputes prior to that NUFAM Secretariat press statement. NUFAM had sent a letter of protest dated 29.04.2013 and an email on 03.06.2013 to MAS pertaining to Fleet Realignment Exercise and the Weight Management Exercise conducted by MAS affecting cabin crew (CLB pages 1 - 3). At page CLB page 4 was a copy of the circular dated 03.06.2013 from MAS on the Weight Management Exercise. NUFAM had filed a trade dispute pertaining to those two matters. The trade dispute on the Fleet Realignment Exercise was filed on 11.11.2013 (CLB page 5). The Honourable Minister had subsequently referred those two trade disputes to the Industrial Court for adjudication and an award (CLB pages 8 and 74). [30] The Claimant asserted that he was not in breach of express and or implied terms and conditions of his employment under the circumstances, considering he was an officer of a trade union. The Claimant further alleged that the Company had acted in bad faith and the punishment of dismissal was nothing but a colourable exercise to deny the Claimant his constitutional right to freedom of association, freedom of expression and security of employment. The Claimant stated that he was dismissed by the Company for statements made by the Secretariat of the National Union of Flight Attendants Malaysia (NUFAM). The Claimant contended that he was a victim of unfair labour practice by the Company for being an officer of a trade union; and that the Company had acted mala fide; and the Company had conducted themselves in a manner which had grossly violated the Code of Conduct of Industrial Harmony and the Agreed Practice annexed thereto; there was harassment of the Claimant and the manner of dismissal was callous, harsh and humiliating. [31] The Claimant stated that it was pertinent to note that the previous warning and or punishment for making press statements referred to in the letter of dismissal was irrelevant as the Claimant made those statements when he was not an officer of a trade union. DOMESTIC INQUIRY [32] In the instant case, the Claimant claimed that the Company had failed to conduct a domestic inquiry before dismissing him from service contrary to the procedures established under the Company's Book of Discipline (Black Book). COW1 informed this Court that the Company had provided the Claimant with due inquiry in accordance with the principles of natural justice; whereby it had issued him with the show cause letter dated 12.11.2013, hence providing him with the opportunity to state his defence/explanation to the allegations contained therein. In this case, vide his reply to the show cause letter dated 16.11.2013, the Claimant did not dispute the statements made which appeared in the article published in The Sun newspaper on 08.11.2013; hence it was not necessary to conduct a domestic inquiry. COW3, one Ilham bin Ismail, the Company's Vice President, Employee Relations had also testified that it is not the practice to hold domestic inquiries in all cases. He explained that when the committee in charge of disciplinary matters finds that there was sufficient evidence, there would be no necessity to conduct a domestic inquiry. He further confirmed that this had been the Company's practice notwithstanding the provision in the Company's handbook. [33] However, this Court is of the view that, it is trite that the absence of a domestic inquiry is not fatal to an employer's case and would not render an otherwise fair dismissal, unfair. In the case of Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn. Bhd. and Another Appeal (Supra ) which held, "It was therefore the function of the Industrial Court in this particular case to determine on the available evidence whether Wong had misconducted himself by his involvement in the sales of the two motor car wrecks against the unwritten rules of Hong Leong which prohibited its staff from such activity. Since the answer was in the positive, the next question for the court to ask itself was whether such misconduct constituted a 'just cause' or 'just excuse' for the dismissal? It was not within the ambit of the reference for the Industrial Court to determine whether Hong Leong ought to be punished for failing to hold a domestic inquiry. The Industrial Court was not competent to declare the dismissal void for failure to comply with the rules of natural justice. The very purpose of the inquiry before the Industrial Court was to give both parties to the dispute an opportunity to be heard irrespective of whether there was a need for the employer to hold a contractual or statutory inquiry. We were confident that the Industrial Court as constituted at present was capable of arriving at a fair result by fair means on all matters referred to it. If therefore there had been a procedural breach of natural justice committed by the employer at the initial stage, there was no reason why it could not be cured at the rehearing by the Industrial Court." [34] Therefore, failure to conduct domestic inquiry, even in the event there had been a procedural breach committed by the Company, it would not render the dismissal null and void, as the hearing at this Court would cure the said procedural breach. FINDINGS [35] The Claimant in cross-examination had admitted that his defence in this case were, that the interview and the statement was made in his capacity as a president and member of NUFAM and not as an employee of the Company. The Claimant had also admitted that there were no provisions in NUFAM's constitution (CLB 4) which had stated that the Claimant's position as the President of NUFAM was independent of his employment with the Company. The Claimant further admitted that his membership in NUFAM was by virtue of the fact that he was a flight attendant employed by the Company. [36] Further, to a question posed by this Court, the Claimant had admitted that he made the statement to elaborate at paragraph 7, 8 and 9 of CLB page 10 (as per Allegation 2 at COB page 8). The Claimant had also admitted during cross-examination that irrespective of any position held outside, he cannot make any press statement as an employee of the Company. The Claimant had further admitted that under Article 27 of the MASEU's Collective Agreement 2011 (COB3), employees are not allowed to give press statement. The Claimant also admitted that in 2013 though NUFAM had obtained recognition, the Collective Agreement between MAS and MASEU was the Collective Agreement applicable and enforced to all employees under the scope. The Claimant also agreed that he was aware under clause 12 of the Company's 'Book of Discipline (Black Book)' (COB page 31), employees are not allowed to make any statement to the press or media without the prior consent of the Company. [37] This Court agrees with the Company's stance that the Claimant's role as a member and President of NUFAM was subject and secondary to his underlying fiduciary duty to the Company as his employer. As COW3 had testified that, the fact that the Claimant made the press statements as president of NUFAM was not an acceptable defence, as the Claimant was first and foremost an employee of the Company and the Claimant only became the President and/or member of NUFAM by virtue of his employment with the Company. Further, the holding of the post in and/or membership of NUFAM did not give the Claimant the licence to make the comments which he made in public. This was particularly so in light of the clear provisions in the Company's Book of Discipline relating to the same. [38] To support the above viewpoint, the learned Counsel for the Company cited the case of Kesatuan Pekerja-Pekerja Perusahaan Alat-Alat Pengangkutan & Sekutu v. Kilang Pembinaan Kereta-Kereta Sendirian Bhd, Johore [1980] 1 ILR 139, the Industrial Court held as follows, "13. An employee who holds office in a trade union must [not] lose sight of the fact that he is an employee first and a Union official second. He cannot take advantage of his position in the Union and forget than he is an employee. He must realise that he is first and foremost an employee and owes a duty to his employer to comply with any lawful direction and to remain subjected to the system of conduct governing employer/employee relationship that must be observed in order to promote orderly conduct within the undertaking." [emphasis added] [39] The above principle was reinforced by the Industrial Court, in the case of Yodoshi Malleable (M) Sdn. Bhd. v. Rajamohan S.P. Palanivel [1997] 2 ILR 449, which held, "It is pertinent to note that the claimant was a union official. Being an employee who holds office he must not lose sight of the fact that he is an employee first and a union official second. He must realise that heis first and foremost an employee and owes a duty to his employer to comply with any lawful direction and to remain subjected to the system of conduct governing employer/ employee relationship that must be observed in order to promote orderly conduct within the undertaking." [emphasis added] [40] Further, in Kandu Anak Sugang & Anor v. Trienekens (Sarawak) Sdn. Bhd. [2010] 4 ILR 558, the employees in this case were dismissed as they were found guilty of the misconduct in instigating other employees to boycott a company event. Their main defence was that they were acting in the capacity as President and Secretary of the union. The Industrial Court upheld the employer's decision of dismissal and held: "[31] To the claimants' contention, this court would like to express very clearly that much as a workman has the right to be involved in legitimate union activities, his employer also has the right to demand him to perform his duties and responsibilities with conviction and diligence. Thus, in engaging himself in union activities, the workman must at the same time ensure that his fundamental duty as a workman to his employer is not derelicted. ... [34] In the circumstances of the case before this court, though the 2 claimants here were officials of a legitimate union, and though acting as they did pursuant to the directions of the union, they cannot claim immunity for their actions if their actions had tantamounted to acts of misconduct and had breached the terms of their employment contract, as they had done in this case." [emphasis added] [41] Therefore, the Claimant cannot rely on the defence that he was a member of the trade union. In the case of Kumpulan Sua Betong Sdn. Bhd. v. Maruthan Kuppusamy [1996] 2 ILR 1594, the Industrial Court had cited Alfred Avins, Employee's Misconduct, which provided: "The making of a public defamatory attack on superiors is insubordination as is the use of abusive language about superiors to third persons. A union officer who authorises the issuance of a public leaflet making a defamatory attack on supervisor is guilty of misconduct and cannot shield himself behind his union status. In one case officers of a union on strike against a bank issued a leaflet accusing management of "exploiting" the bank for their "individual interest and self-aggrandizement throwing to the winds the interests of share holders depositors and poor bank employees" as device to gain public sympathy. The Supreme Court of India observed that this statement makes importations about the honesty and management of the bank and in terms suggest improper use of the funds of the bank for personal purposes. It therefore concluded that the of "publication can be regarded as subversive of the credit of the bank. Therefore for his direct connection with this document alone the appellate tribunal would have been justified in refusing reinstatement", (Punjab National Bank Ltd. v. All India Pun. N.B.E.F - [1960] 1 SCR 806 AIR [1960]." [emphasis added] [42] This Court agrees with the Company's contention that the Claimant having participated in the interview and making the press statements as contained in the article published, the Claimant had acted against the interests of the Company, which he ought to have given paramount priority. It is trite that an employee's conduct which is prejudicial to the interests and/or the reputation of an employer would be deemed as a misconduct as decided in the case of Pearce v. Foster [1886] 17 QBD 536, whereby Lord Lopes held: "If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service or the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant." [emphasis added] [43] This Court respectfully agrees with the above said authorities and finds that the Claimant's contention that the interview and the statement was made in his capacity as a president and member of NUFAM and not as an employee of the Company was unfounded. The Claimant was duty bound to place his responsibilities as an employee ahead of his duties of the trade union. Though it was the Claimant's right to partake in union activities, however, the Claimant would not be immunized from disciplinary action when he had breached his expressed and/or implied duties to the Company as an employee. [44] The learned Counsel for the Claimant submitted that the Claimant was protected under section 22 of the Trade Unions Act 1959 (TUA 1959), sections 4 and 5 of the IRA. It was contended that those statutory provisions grant the Claimant immunity against any action as a member of the trade union. In support of his contention the learned Counsel cited the Court of Appeal case of Nur Rasidah Jamaludin v. Malayan Banking Bhd. & Other Appeals [2018] 1 CLJ 330; Barat Estates Sdn. Bhd. & Anor v. Parawakan Subramaniam & Ors [2000] 3 CLJ 625 and Kesatuan Sekerja Industri Elektronik Wilayah Barat Semenanjung Malaysia v. Renesas Semiconductor KL Sdn. Bhd. [2016] 2 ILR 138. Section 22 TUA 1959 [45]Section 22 of TUA stated as follows:- "22. Liability in tort. (1) A suit against a registered trade union or against any members or officers thereof on behalf of themselves and all other members of the trade union in respect of any tortious act alleged to have been committed by or on behalf of the trade union shall not be entertained by any court. (2) Nothing in this section shall affect the liability of a trade union or any trustee or officers thereof to be sued in any court touching or concerning the specific property or rights of a trade union or in respect of any tortious act arising substantially out of the use of any specific property of a trade union except in respect of an act committed by or on behalf of the trade union in contemplation or furtherance of a trade dispute." [46] The Court of Appeal in Nur Rasidah Jamaludin v. Malayan Banking Bhd & Ors Appeals (supra ), where Harmindar Singh Dhaliwal JCA held:- "The general immunity conferred by s. 22(1) applies to the tort of libel and hence the defendants here cannot be held liable for the impugned documents published by the trade union. In short, trade unions and its members or officers have absolute immunity from actions that are premised upon the tort of libel pursuant to s. 22(1) of the TUA 1959 when the tortious acts complained of were "committed by or on behalf of the trade union"." [emphasis added] [47] The learned Counsel for the Company in reply submitted that the phrase "absolute immunity from actions that are premised upon the tort of libel..." signified that the Court of Appeal extended the protection in so far where an action against an employee was taken in the civil courts for the tort of libel. As the TUA 1959 does not provide for the definition of "action", the Courts of Judicature Act 164 (CJA 1964) was referred to assist the interpretation of the said phrase. Section 3 of the CJA 1964 stated that:- ""action" means a civil proceeding commenced by writ or in such other manner as is prescribed by rules of court, but does not include a criminal proceeding; ... "proceeding" means any proceeding whatsoever of a civil or criminal nature and includes an application at any stage of a proceeding;" [48] The learned Counsel further submitted that, section 22 TUA 1959 clearly provided that the provision governs "Liability in Tort". A tort is a civil wrong, as enunciated by the Court of Appeal in Bank Bumiputra Malaysia Bhd v. Emas Bestari Sdn. Bhd. & Anor And Another Appeal [2014] 1 CLJ 316. Therefore, the provisions of section 22 TUA 1959 and its purported immunity extended only to encompass civil claims against trade unions or its members for tortious liability. He stated that the action against the Claimant was not an action for tort but was an action for misconduct committed by the Claimant. [49] The learned Counsel further submitted that the Claimant's interpretation of section 22 TUA 1959 ran counter to the established cases which have ruled that notwithstanding the fact that an employee was a member of the union, that did not immunize them if their actions tantamount to acts of misconduct. [50] This Court agrees with the submission put forward by the learned Counsel for the Company and it is the considered view of this Court that section 22 of TUA does not apply to disciplinary proceedings taken against employees and only relates to conferring immunity from civil suits for tort as clearly decided in the case of Nur Rasidah Jamaludin v. Malayan Banking Bhd & Ors Appeals (supra ). The Claimant's dismissal was due to the misconduct committed by him as per the allegations at COB page 8. Sections 4 and 5 IRA [51] The learned Counsel for the Claimant had also submitted that the Claimant was statutorily protected by virtue of sections 4(1) and 5(1) of the IRA. This Court agrees with the learned Counsel for the Company's submission that this contention was misconceived. [52] In the case of Kesatuan Kebangsaan Pekerja-Pekerja Bank Semenanjung Malaysia v. CIMB Bank Berhad [2016] 1 ILR 363, it was held that where disciplinary action was taken against an employee, it was not a violation of s. 4(1) of the IRA. The Industrial Court held:- "[24] The text of s. 4(1) suggest that no person shall interfere with, restrain or coerce a workman in the exercise of his rights to form and assist in the formation of and join a trade union and to participate in its lawful activities. From the evidence and facts it is not shown how the respondent/bank by their actions have infringed this section. It cannot be said that by taking disciplinary action against UW1 the respondent/bank has interfered with, restrained or coerced a workman in the exercise of his rights to form and assist in the formation of and join a trade union and to participate in its lawful activities....Taking disciplinary action against a workman for a perceived wrong is the prerogative of the employer to say the very least. The court cannot fathom how this could tantamount to interfering with, restraining or coercing a workman in the exercise of his rights to form and assist in the formation of and join a trade union and to participate in its lawful activities....Subjecting a workman to disciplinary proceedings is not a violation of s. 4(1). Dismissing him because he was found guilty of the Charges framed against him is also not a violation of s. 4(1)." [emphasis added] [53] Further, it was also decided in the abovementioned case that commencement of disciplinary action and dismissing a workman did not tantamount to a violation of section 5(1) of the IRA; and that it was reinforced by section 5(2) of the said Act. To this effect the Industrial Court held, at paragraph 26, "Merely commencing disciplinary action and dismissing him thereafter as he was found guilty by the panel of inquiry for the perceived wrong he did, cannot tantamount to a violation of s. 5(1)(d). These are actions taken rightly or wrongly by an employer for a perceived wrong done by its workman....The court's view to this effect is further reinforced by 5.(2) of the Industrial Relations Act 1967 which states that subsection (1) of s. 5 ( supra ) shall not be deemed to preclude an employer from refusing to employ a person for proper cause or not promoting a workman for proper cause or suspending, transferring, or laying-off or discharging a workman for proper cause. Hence for reasons enumerated herein before it the court finds that the union's arguments and claim that the respondent/bank has violated s. 5(1)(d) is again misconceived as it is clear that pursuant to subsection (2) an act of discharging a workman for proper cause cannot be deemed a contravention of s. 5(1)(d)." [emphasis added] [54] Section 5(2)(a) of the IRA 1967 states as follows:- "(2) Subsection (1) shall not be deemed to preclude an employer from- (a) refusing to employ a person for proper cause, or not promoting a workman for proper cause, or suspending, transferring, laying-off or discharging a workman for proper cause;" [emphasis added] [55] Therefore the above provisions are clear that, notwithstanding section 5(1) of the IRA, the Company may dismiss the Claimant where it is deemed to be the proper cause of action, namely where it is found that the Claimant was guilty of a misconduct. [56] It is the considered view of this Court that sections 4(1) and 5(1) of the IRA 1967 are inapplicable in this particular instance as the Claimant was found to be guilty of the allegations of misconduct levelled against him. This Court agrees with the learned Counsel for the Company's submission that even if there was any breach of section 4(1) or section 5(1) of the IRA (which was denied), the avenue to redress such breaches was by way of section 8 of the IRA. It was not open to this Court in a reference under section 20 of the IRA to consider sections 4(1) and 5(1) of the IRA which would be a domain of the Industrial Court in a reference under section 8 of the IRA. [57] The Claimant had also claimed that he was discriminated by the Company on the grounds that the Claimant was punished for dismissal, notwithstanding, the fact that the MASEU President had also issued similar press statements attacking the management of the Company and had called for the resignation of the CEO; however, no action was taken against the MASEU officials. [58] With regard to this issue, COW1 had testified that the Company did receive a report and had conducted an investigation into the matter, however, it was put on hold due to the announcement of the Company's restructuring. COW1 further testified that soon thereafter the Malaysian Airline System Berhad (Administration) Act 2015 was passed and that all cases were put on hold due to the moratorium whilst the Company prepared for the restructuring process. This was confirmed by COW3 who testified that in view of the major developments taking place in the Company during the material time, in particular the MH370 and MH17 incidents, it was decided that the appropriate action to be taken against the MASEU members would be put on hold. [59] However, this Court agrees with the Company's contention that, the fact that no action was taken against other employees does not determine the justifiability of the Claimant's dismissal. The learned Counsel for the Company in his submission referred this Court to the case of Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn. Bhd. [2010] 8 CLJ 629, whereby the Federal Court held, "All the above are the relevant matters which the Industrial Court had failed to take into consideration. Instead, it took into consideration other irrelevant matters. A clear example was when it took into account the fact that the respondent's action in not taking action against another employee for a similar misconduct amounted to a display of double standard. With utmost respect, such conclusion is a clear error. As rightly pointed out by the learned High Court judge that such consideration was irrelevant as it was not for the appellant to question why the respondent as the employer should take disciplinary action against her and not another." [emphasis added] [60] As this Court had decided in the case of Norkhairul Izam bin Kassim v. Bank Muamalat (M) Berhad (Award No. 375 of 2018), referring to the case of Ranjit Kaur (Supra ), this Court has no jurisdiction to consider the punishment imposed on the other employees. It is the duty of this Court to decide whether the punishment of dismissal on the Claimant was fair and just based on the facts and circumstances pertaining to the misconduct that the Claimant had committed. [61] Irrespective of whether there was any action taken against MASEU officials or its president, this does not absolve the Claimant of his own misconduct and render the Company's decision to terminate his services void. As held by Abdul Malik Ishak JCA (as he then was) in the case of Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 3 CLJ 310:- "It must be borne in mind that irrespective of whether or not the respondent employer chose to discipline another individual this did not absolve the appellant employee from her misconduct. The High Court was correct in issuing an order of certiorari because it was not for the appellant employee to question the respondent employer's election of whom to discipline." [emphasis added] [62] The learned Counsel for the Company submitted that based on the foregoing authority, the Claimant was precluded from questioning the Company's decision on whether to impose any disciplinary action against the MASEU officials. The Company's decision to dismiss the Claimant was made in light of the nature of the Claimant's misconduct and his poor disciplinary record (COB pages 16 - 29). COW3 testified that the Claimant had failed to appreciate that the Company had previously accorded him with the opportunity to improve his behaviour by issuing him with lesser punishments when he had made press statements in the past. Instead of desisting, the Claimant repeated his conduct; despite being expressly warned against making future statements to the press pertaining to the business of the Company. [63] It is also the Company's contention that the Claimant was well aware of the Company's position in relation to his actions of speaking to the media without prior consent of the Company, which the Company deems as a misconduct under clause 12 of the Company's 'Book of Discipline (Black Book)'. Notwithstanding the above, the Claimant had acted in defiance of the Company's warnings and had repeatedly committed a misconduct of a similar nature in this instance. The past misconduct was stipulated in the Claimant's dismissal letter dated 29.11.2013 (COB pages 13 - 15). [64] It is trite that past misconduct of an employee is a relevant factor to be considered in determining whether the punishment of dismissal is harsh. In support, the learned Counsel for the Company referred the case of Kamala Loshanee a/p Ambalavanar v. Jaffnese Co-operative Society [1998] 1 LNS 339; [1998] 7 MLJ 61, Nik Hashim J (as he then was) held, "The message to the applicant was very clear indeed that the warning was a final one. Unfortunately, the applicant did not heed it. The previous warnings could not be considered as 'spent', even though the final warning was issued some 12 years prior to the incident. Since the final warning was breached by the applicant's misconduct, the respondent society could not be expected to overlook the past bad record of the applicant and to confine itself to the particular incident of this case... Thus, the learned Chairman of the Industrial Court was right to take the past misconduct as a relevant consideration for the purpose of determining the appropriate punishment for the subsequent misconduct." [emphasis added] [65] Also in the case of UMW Equipment Sdn. Bhd. v. Parantaman Ramasamy & Anor [2014] 3 ILR 12; [2014] 3 MLJ 457 which held, "[22] As far as punishment was concerned, the facts showed that this was not the first time that the respondent had been brought before the domestic enquiry for similar misconduct. The first domestic enquiry which was held on 20 April 1998 found the respondent guilty of five charges of misconduct but the appellant decided to give him another opportunity by giving him a final warning that any further act of misconduct and infringement of the appellant's rules and regulations would result in termination of service. The judgment of the Industrial Court shows that the respondent had been issued with warning letters relating to his discipline and punctuality even before the first enquiry was held. Verbal warning had also been given to him in the past. Learned counsel for the appellant submitted that the misconduct which preceded the second enquiry was the proverbial straw that broke the camel's back leaving the appellant with no choice but to terminate his employment upon the respondent being found guilty of the charges against him. Past misconduct is a relevant factor and the Industrial Court, had in the past, taken into consideration in determining whether the punishment is harsh or otherwise." [emphasis added] [66] Where an employee repeatedly commits a misconduct of a similar nature, the repetitive nature of such actions may warrant dismissal as decided in the case of VDO Instruments (M) Sdn. Bhd. v. Lau Jit Imm [2004] 3 ILR 392, the Industrial Court held, "The law is that past misconduct is a relevant factor when considering whether a dismissal is justified. The repetition and cumulative effect of similar acts of misconduct may justify dismissal." [emphasis added] [67] This Court agrees with the Company's contention that the Claimant's repeated similar misconduct underlines his insubordination against the Company. As a long-serving employee of the Company, the Claimant ought to have been aware of the Company's policies instead of acting in contravention of the same. [68] In the present instance, the Claimant did not deny the allegations which had been levelled against him; he merely took the position that the press statements had been made by virtue of his position as the president of NUFAM. Apart from breaching his implied duty towards the Company, the Claimant had also breached express regulations of the Company, namely the procedure governing the raising of grievances and the provision in the Company's 'Book of Discipline (Black Book)' in relation to publications, interviews, broadcasts etc. [69] The Company contended that the Claimant's dismissal was justified on the basis that the contents of the press statement which levelled various allegations against the Company were unfounded. The learned Counsel for the Company referred to the case of Penang Han Chiang Associated Chinese Association v. Lim Keng Hun [1996] 2 ILR 1830, which held, "When an employee is in employment, he is likely to come across information which is of such nature that if passed to outsiders may not be in the best interest of the company. If an employee passed on such information that is presumed to be an act of damage to the interest and reputation of the company, it is misconduct. If the information so passed is of serious nature and without justification or truth then the company's dismissal of such an employee would be justified." [emphasis added] [70] The learned Counsel submitted that the Claimant as the president of NUFAM and a member of its Executive Committee was responsible for the remarks made by NUFAM to the press. NUFAM's call for the resignation of the Company's CEO, is a misconduct which justified the Claimant's dismissal. The learned Counsel referred to the case of Kumpulan Sua Betong (supra ), it was held. "The company can take serious objection to this if indeed it is true that the claimant had defamed the company. The Court agrees with the submission of learned Counsel for the company that defaming one's employer is a serious misconduct for which the employee can be dismissed." [emphasis added] [71] The learned Counsel also referred the case of Chuang Kwang Li v. Aero Chuang Kwang Li [2010] 2 LNS 0583, whereby the employee in this case was dismissed on the grounds that he had made disparaging remarks and/or questioned the reliability/authority/integrity of the CEO. The Industrial Court, in evaluating the proportionality of the punishment, upheld the decision of the employer to dismiss the employee, and held, "The proposals he made to COW2 as to the mode of payment by backdating invoices would entail payments to unconnected parties. The proposal to pay an additional RM600,000.00 was on a balance of probability a breach of honestly, integrity and good faith to the Company. The Court finds on a balance of probability, the Claimant's conduct to be acrimonious, insolent and disrespectful in particular to COW1 as the CEO of the Company and the Company as a whole." [emphasis added] [72] This Court respectfully agrees with the above said authorities and the submission of the learned Counsel for the Company. It was clear that making derogatory statements of the employer is a dismissible misconduct irrespective or independent of whether the offence is contained in the handbook. [73] This Court also finds that the press statement which raised various allegations against the Company which was subsequently published in an article in The Sun newspaper on 08.11.2013 would pose a risk of adverse publicity to the Company and are potentially damaging to the reputation of the Company which was the country's national carrier. [74] In view of the seriousness and nature of the Claimant's misconduct; and taking into account the fact that the Claimant remained unremorseful based on his poor disciplinary record, it is the considered view of this Court that the Company's decision to dismiss the Claimant with immediate effect was warranted and commensurate with the misconducts committed by the Claimant. Hence, the Company had just cause and excuse to dismiss the Claimant in the circumstances of this matter. CONCLUSION [75] In view of that, after taking into account the totality of the evidence adduced by the parties and bearing in mind subsection 30(5) of IRA which requires the Court to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form, this Court finds that the Company has proved on a balance of probabilities that the Claimant's dismissal was with just cause or excuse. Accordingly, the Claimant's case is hereby dismissed. HANDED DOWN AND DATED THIS 14TH DAY OF FEBRUARY 2019 (JAMHIRAH ALI) CHAIRMAN INDUSTRIAL COURT, MALAYSIA KUALA LUMPUR