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Case Update: Participation in trade union will not grant immunity from disciplinary action if conduct amounts to breach of express and/or implied terms of employment

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Employment and Administrative Law
Appeal – Unfair Dismissal – Union Activity – Whether dismissal of Respondent was lawful under Sections 4(1) and 5(1) of IRA 1967  - Industrial Relations Act 1967, Sections 20, 4(1) & 5(1)

Malaysian Airline System Bhd v Ismail Nasaruddin bin Abdul Wahab
[2021] MLJU 565, Court of Appeal
- see the grounds of judgment here

Facts The Malaysian Airline System Bhd (“Appellant”) is a company responsible for the operation of airline transportation service, while Ismail Nasaruddin bin Abdul Wahab (“Respondent”) was an employee of the Appellant and also the President of the National Union of Flight Attendants Malaysia (NUFAM), a registered trade union. The Sun newspaper published an article which, amongst other various allegations against the Appellant, referred to NUFAM’s call for the resignation of the Appellant’s Chief Executive Officer, which was made in reference to an interview made by the Respondent. As a result, the Respondent was dismissed from his employment. The Respondent applied to the Industrial Court for a declaration of unfair dismissal without cause under Section 20(1)[1] of the Industrial Relations Act 1967 (“IRA 1967”) claiming that when making the statement in the article, he was only acting in the capacity of the President of NUFAM, and not as an employee of the Appellant. As such, his dismissal was contrary to sections 4(1)[2] and 5(1)[3]  of IRA 1967. The Industrial Court held in favour of the Appellant and reaffirmed the position that the fact that he was an officer of a trade union will not grant him immunity from disciplinary action if his conduct amounted to a breach of the express and/or implied terms of his employment. This was however overturned in the High Court where it was held that the Respondent was unfairly dismissed due to participation in trade union activities. Hence, this appeal.

Issues Whether the dismissal of the Respondent was lawful under Sections 4(1) and 5(1) of IRA 1967.

Held In allowing the appeal, the Court of Appeal held that the contract of employment had implied into it, a duty of good faith and that there was also an implied duty that the employee would not, without proper and reasonable cause, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between the parties. As such, the act of the Respondent in breaching express regulations of the Appellant, namely, the procedure governing the raising of grievances and the provisions in the Appellant’s Book of Discipline in relation to publications, interviews and broadcast, it was held that there is no merit in the allegation that the Appellant had contravened sections 4(1) and 5(1) of IRA 1967.

ZUL RAFIQUE & partners
{30 April 2021}
[1] Where a workman, irrespective of whether he is a member of a trade union of workmen or otherwise, considers that he has been dismissed without just cause or excuse by his employer, he may make  representations in writing to the Director General to be reinstated in his former employment; the representations may be filed at the office of the Director General nearest to the place of employment from which the workman was dismissed
[2] No person shall interfere with, restrain or coerce a workman or an employer 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.
[3] Prohibition on employers and their trade unions in respect of certain acts