In doing any sort of research about unfair dismissal in Malaysia, one will undoubtedly come across the phrase “natural justice“ quite frequently. This is because as part of the consideration of determining whether a workman’s dismissal or termination was fair, the Industrial Court will examine whether the principles of “natural justice” have been adhered to. But what exactly is natural justice?
The Federal Court (the apex Court in Malaysia) in December 2014 dealt with this question in the case of Malaysia Airline System Berhad v Wan Sa’adi Wan Mustafa.
1. A new assistant stewardess alleged that the respondent had sexually harassed her during a flight. She alleged that the respondent had made inappropriate comments to her, and also physically harassed her by taking hold of her palm and caressing it with her hand when she introduced herself to him.
2. Pursuant to the complaint, a domestic inquiry was held and the respondent was found guilty of the charges. He was dismissed with immediate effect.
3. Unhappy with the decision of the company, the respondent lodged a complaint of unfair dismissal and the matter was referred to the Industrial Court.
4. The Industrial Court concluded that the respondent did commit sexual harassment and as the act was “a serious affront to the dignity of any self-respecting woman”, the respondent deserved to be dismissed.
High Court and Court of Appeal
1. The Respondent applied to the High Court to quash the decision of the Industrial Court on the basis that, during the Industrial Court trial: (a) the complainant was allowed to give testimony “in camera” (ie in private) in the absence of the respondent, and (b) other witnesses were not called to testify during the Industrial Court trial even though they testified during the domestic inquiry.
2. The High Court (and subsequently, the Court of Appeal) agreed with the respondent and held that there was a breach of natural justice when the Industrial Court allowed the complainant to give her testimony in private in the absence of the respondent.
Findings of the Federal Court
1. Dissatisfied with the decisions of the High Court and the Court of Appeal, Malaysia Airlines appealed to the Federal Court.
2. The Federal Court allowed the appeal and upheld the initial award of the Industrial Court. In so doing, the Federal Court made the following important findings:
- Was there procedural impropriety when the Industrial Court allowed the complainant to testify “in camera”? While the Federal Court agreed that the Industrial Court is empowered by Section 30(5) of the Industrial Relations Act to “act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form”, the Industrial Court is also not allowed to conduct its proceedings in any manner and according to its own whims and fancies. However, in this particular case, although the respondent was not present when the complainant gave her evidence, the respondent’s counsel was present and he did in fact cross-examine the complainant. The Federal Court therefore held that there was no “procedural impropriety” or “procedural unfairness” , especially since there was no objection by the respondent when the Industrial Court first decided that the complainant’s proceedings should be heard in private.
- How should the Courts apply the principles of natural justice? The Federal Court held that it is important to bear in mind that the principles of natural justice should not be unreasonably and unnaturally extended so as to frustrate the process of law. It would suffice to a large extent if the essential elements of the principles are followed- namely:
- there must be an absence of bias or even an appearance of bias
- there must be scope for a fair hearing
- irrelevant materials must not be taken into account
- Failure to call other witnesses : The Federal Court found no merit in the complaint of the respondent that the failure to call the people who testified during the domestic inquiry as witnesses in the Industrial Court trial, deprived him the opportunity to cross-examine them. There was nothing to prevent the respondent from calling those witnesses to testify at the Industrial Court trial, even if Malaysia Airlines chose not to call them as witnesses. The respondent was present at the domestic inquiry and he heard the witnesses and was therefore fully aware of the nature of their evidence. He could have applied for them to be called by the Industrial Court as witnesses, but chose not to.
The decision by the Federal Court further solidifies the Industrial Court’s position as a creature of equity and good conscience, which is not strictly bound by technicalities and legal forms (although they did caution that such flexibility must still be exercised in accordance with the rules of natural justice). It is also important to understand that the decision by the Federal Court was also made based on very specific facts and it should not be taken as a blanket authority that “in camera” testimony will always be considered procedural fair. It is possible that the decision could have gone another way if the respondent’s counsel was not allowed to be present during the in camera testimony, or if the in camera testimony was conducted for another subject matter that is not as “sensitive” as as sexual harassment complaint.
The concept of “natural justice” still remains difficult to define but for good reason. As no two cases are alike, it would be more of a disservice than an advantage to have the parameters of natural justice so tightly construed.
ABOUT THE AUTHOR. Donovan Cheah is a partner at Donovan & Ho. He is an advocate and solicitor of the High Court of Malaya, and his writings have been featured in publications like The Star, the American Chamber of Commerce updates, and Asialaw.