Union members conducting legitimate trade union activities are protected from the reprisals of employers, as confirmed by the Federal Court in Ismail Nasaruddin Abdul Wahab v Malaysian Airline System Bhd [2022] 9 CLJ 801.
Are there any boundaries to this freedom of expression? Less than a year after the Federal Court’s landmark judgment of Ismail Nasaruddin, the Industrial Court had to grapple with such a situation in Sethupaty Thiaganajan v HSBC Bank Malaysia Berhad [2023] ILRU 0244.
Brief Facts
- The Claimant was an employee of HSBC Bank Malaysia Berhad (“the Bank”) and a member of the National Union of Bank Employees (“Union”).
- At the relevant time, the Bank and the Union were engaged in multiple trade disputes. In response to those disputes, the Union initiated a series of industrial actions against the Bank.
- As a member and an officer of the Union, the Claimant had carried out the following actions: –
- Posted, published and/or shared disparaging remarks about the Bank on his own personal Facebook page, where he used hashtags such as “#HSBCLiar”, “HSBCCheats”, and “HSBCBetterinCrime”.
- Posted and/or shared images of individuals holding placards with phrases such as “HSBC Malaysia Violates Women’s Right” and “HSBC Malaysia Disrespects Women”.
- Posted a picture on himself holding a placard with phrase “HSBC Malaysia Violates Women’s Rights”.
- Led Union members to repeatedly chant that the Bank’s CEO and its Human Resources Officer as a “liar” whilst picketing outside of the Bank’s headquarters.
- The Bank took issue with the Claimant’s actions above and issued a show cause letter against him. In response, the Claimant asserted that it was his legitimate right to participate in trade union activities.
- Ultimately, the Bank found the Claimant’s response to be unsatisfactory and decided to terminate the Claimant’s employment.
- The Claimant filed an unfair dismissal claim against the Bank.
Industrial Court’s Findings
In determining whether the Claimant’s conduct constituted misconduct, the Court applied the test in Ismail Nasaruddin, being: –
- Whether the alleged act of misconduct was identified?
- Was the alleged act of misconduct related to a trade union activity?
- Was the alleged act of misconduct complained of by the employer closely connected with and carried out in the workman’s role as a union representative?
- Alternatively, was the alleged act of misconduct while (stated to be) carried out by the workman, purportedly in the course of his activities as a union representative, knowingly or recklessly false, or tainted with malice, illegality and unreasonableness such that it could not reasonably be said to fall within the scope of bona fide trade union activity?
The Court found that the Claimant’s alleged misconduct relates to the trade disputes between the Union and the Bank.
Furthermore, there was no evidence that the Claimant had acted on his own. For example, the Claimant did not choose the hashtags or words that the Bank found to be offensive. As for the pictures of the Union members uploaded on his Facebook, this was done in accordance with the Union’s social media campaign.
The Court also held that it was unfair for the Bank to single out the Claimant and another employee for dismissal, when a large group of the Bank’s employees had taken part in the same activities.
The Bank also attempted to argue that the words used by the Claimant were improper. However, the Court observed that section 22 of the Trade Union Act 1959 (which protects trade unions and their members from any tortious acts) does not place any specific standard of propriety on the words used by the Union and its members.
Although the Union could have chosen more diplomatic or tactful terms in its picket, the choice of words alone does not defeat the Union’s reason for using such terms in the first place.
Key Takeaways
This decision confirms that any disciplinary action to be taken against employees must be strictly assessed in accordance to the test in Ismail Nasaruddin. The key factor is whether the complained actions are related to a trade union activity and was it carried out by the employee in their capacity as a union member. The propriety and niceties of the complained actions are irrelevant.
This also demonstrates that the range of protected activities are not only limited to traditional media (eg: press statements) or physical activities (picketing). Union members still enjoy the same level of protection even if they post it on their own social media accounts, if it relates to the activities of the trade union.
This decision also underscores the importance of consistency in the treatment of employees. Selectively dismissing certain employees for union related misconducts incurs a higher risk of being seen as victimizing the said employee.
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This article was written by Leow Ho Eng (Associate) with assistance from Austin Tan (Intern) from Donovan & Ho’s employment law practice.
Donovan & Ho is a law firm in Malaysia, and our employment practice group has built a reputation for providing strategic employment advice to local and global organisations. Our team of employment lawyers provide advice on employment law and industrial relations including review of employment contracts, policies and handbooks, advising on workforce reductions, and managing dismissals of employees for poor performance or misconduct. We also represent clients in unfair dismissal claims and employment-related litigation.
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