In 2019, we previously wrote about the Industrial Court’s decision in Thilagavathy A/P Arunasalam v Maxis Mobile Sdn Bhd (Award No. 1050 of 2019, 27 March 2019) (“Award”).  In that case, an employee was dismissed for, among other things, quitting the Company’s WhatsApp group without notifying her superior. There, the Industrial Court found that the employee’s dismissal was with just cause and excuse.

The Award was challenged on judicial review, and was quashed by the High Court on 1 July 2020 (Kuala Lumpur High Court Judicial Review WA-25-28306/2019). In this article, we discuss the High Court’s decision in quashing the Award and its reasons for doing so.

Summary of the Industrial Court Award

In dismissing the Employee’s claim for unfair dismissal, the Industrial Court found that the Company had successfully proven that the Employee was guilty of the following misconduct:

  1. Quitting the Company’s WhatsApp Group without approval of her supervisor which was in breach of the Company’s policies; and
  1. The Employee’s failure to submit the Sales and Service Report to her supervisor on the relevant dates.

Judicial Review

Dissatisfied with the Award, the employee filed a judicial review application to the High Court to quash the decision of the Industrial Court.

Among other things, the employee claimed that the Industrial Court had erred when it held that it was wrong to quit the Company’s WhatsApp group, since this was clearly not in breach of the employee’s letter of offer or any specific company policy.

High Court’s Findings

The High Court quashed the Award and ordered for the case to be re-heard in the Industrial Court by a different chairman. The High Court held:

  1. Based on the evidence adduced by the employee’s supervisor, it was not clear whether the employees were informed that approval was required before they could quit the Company’s WhatsApp Group. Therefore, the High Court found that it was reasonable for the employee to not have knowledge that the supervisor’s approval was required, before she could quit the Company’s Whatsapp group
  2. The existence of the Company’s WhatsApp Group was only to facilitate communications between the supervisor and the employees, and does not amount to an instruction which could result in the violation of the terms of employment.
  3. The Industrial Court did not take into account the relevant fact that the employee had left the WhatsApp Group temporarily because she was going to go on annual leave, and would have rejoined after her annual leave.

The High Court was also of the view that the Industrial Court failed to consider other facts relating to the employee’s performance (eg: the submission of her sales and service report through the Company’s system), and the fact that communication between the employee and the supervisor did show some biased treatment prior to the employee’s termination.

Takeaways

The High Court did not make a finding that the employee’s dismissal was unfair, but rather redirected the claim to be reheard at the Industrial Court before a different chairman.  In assessing this case, it is also important to understand that the High Court’s function at judicial review was to examine the decision making process of the Industrial Court, and whether the conclusions reached by the Industrial Court were reflective of the evidence tendered by parties.

That being said, employers should take note of the High Court’s observations if they intend to make WhatsApp (or other types of communication) an official channel for employee communication.

Among other things, employers are advised to document their policies clearly, and obtain employee acknowledgment of such implementation of policies in their organisation. This will reduce the risk of employees later claiming that they were not aware of such policies.

In this case, problems arose for the Company because it was not clear to the High Court whether employees were aware and informed that it was a policy/requirement not to quit the WhatsApp Group without permission. There may have been a different outcome if the Company had a written policy about the use of the WhatsApp Group and whether employees require permission to leave this group.

Employers should also ensure that their policies and procedures are consistently applied throughout their organisation – there should not be different treatment for different employees. In this case, the High Court took note of the employee’s supervisor’s testimony that approval to leave the WhatsApp Group is based solely on his discretion – therefore, it is unlikely that all employees will be treated the same when discretion becomes the sole basis for approval.

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This article was written by Donovan Cheah and Natalie Ng. Donovan has been named as a Recommended Lawyer for Labour and Employment by the Legal 500 Asia Pacific 2017, 2018, 2019 and 2020, and he has also been recognised by Chambers Asia Pacific and Asialaw Profiles for his employment law and industrial relations work.

Donovan & Ho is a law firm in Malaysia. Our practice areas include employment law, dispute resolution, tax advisory and corporate advisory.  Have a question? Please contact us.

 

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