Union members are afforded protection against reprisals from their employers due to their union membership. These protections are enshrined in the Industrial Relations Act 1967 (“IRA 1967”), Trade Union Act 1959 (“TUA 1959”) and Employment Act 1955 (“EA 1955”). However, these protections do not amount to a blanket immunity for union members, as the law recognizes the employer’s right to take disciplinary action (including dismissal) against union members for proper cause.
On 3 October 2022, in Ismail Nasaruddin Abdul Wahab v Malaysian Airline System Bhd  9 CLJ 801, the Federal Court provided an answer to the extent of protection afforded to union members.
- The appellant was an employee of Malaysian Airline System Bhd (“MAS”) for 25 years. At the material time, he was also the President of the National Union of Flight Attendants Malaysia (NUFAM) (“Union Leader”).
- Sometime in 2013, the cabin crew employees of MAS were disgruntled over the introduction of some policies. Eventually, this led to NUFAM referring these matters to the Director General of Industrial Relations as a trade dispute. However, NUFAM and MAS were unable to resolve the trade dispute.
- The Union Leader issued a press statement in his capacity as NUFAM President, where he highlighted the plight of overworked and underpaid cabin crew members and urged MAS to enact policies to ensure their welfare and safety. At the same time, the Union Leader also called for the resignation of MAS’ CEO as a result of the latter’s inability to resolve the problems faced by the cabin crew under his leadership (“Press Statement”).
- One day later, the Union Leader was suspended and issued a show cause letter in relation to the Press Statement, which was described as a “serious misconduct”. MAS also further alleged that the issuance of the Press Statement tantamount to a breach of both express and implied terms of his employment with MAS.
- The Union Leader was later dismissed by MAS for the issuance of the Press Statement.
- At the Industrial Court, it was held that the Union Leader’s dismissal was done with just cause and excuse, as the protections afforded under the IRA 1967 was inapplicable in a claim of unfair dismissal.
- The Union Leader then applied to the High Court for judicial review against the Industrial Court’s decision.
- The High Court quashed the Industrial Court’s Decision, and this decision was later reversed by the Court of Appeal. In essence, the Court of Appeal held that any conduct of the employee (irrespective of their position as a trade union member) which is likely to damage the reputation of the employer may constitute as gross misconduct.
- The Union Leader appealed to the Federal Court.
Federal Court’s Findings
The Federal Court observed that the current legislative scheme (ie: IRA 1967, EA 1955 and TUA 1959) does not prohibit the issuance of press statements by trade union officers or members.
Acts which are closely connected to an employee’s role as a union representative ought to fall within the scope of trade union activity protected by law. However, such protection will not apply when the said actions are knowingly or recklessly false, or when they become tainted by unreasonableness, malice or illegality. In a case of unfair dismissal, the employer bears the burden of proof in establishing that the union member’s action has exceeded the scope of legitimate trade union activity.
The Federal Court further held that the applicable test was:
- What is the alleged act of misconduct?
- Was the alleged act of misconduct related to a trade union activity?
- If so, was the alleged act of misconduct closely connected with or carried out in the workman’s role as a union representative?
- As an alternative to (3), was the alleged act of misconduct (purportedly carried out in the capacity of a union representative) was knowingly or recklessly false, or tainted with malice, illegality or unreasonableness such that it could not be reasonably said to fall within the scope of bona fide trade union activity?
Given that the Press Statement was about the problems faced by the employees in the workplace and the failure of the management to address the same, the Federal Court held that this amounted to participation in the lawful activities of a trade union.
The Federal Court therefore held that as a principle of law, an employee ought not to be dismissed for participation in trade union activities carried out in his capacity as a trade union officer or member, unless the activities were extraneous to trade union affairs, or were carried out maliciously, or in a manner which knowingly or recklessly disregards the truth.
The dismissal of union employees on the basis of exceeding the scope union activities will have to be carried out with great care. Even if the union employee’s conduct had caused commercial detriment to the employer, employers are still required to consider the said union employee’s conduct and determine if it is truly done in the furtherance of union activities. In other words, it is not good enough to dismiss a union employee merely on the basis that their union activities had caused financial harm to the employer.
The Federal Court’s decision also means that unions are generally not required to fully exhaust the dispute resolution mechanism in a collective agreement before making press statements. This decision further enhances the protection for union employees that are carrying out union activities in a bona fide manner.
This article was written by Leow Ho Eng (Associate) from Donovan & Ho’s employment law practice.
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