Undoubtedly the law acknowledges the employer’s right to take disciplinary action (including dismissal) against union members for proper cause. However, the cases below highlights that this right has to be balanced against the protection afforded to union members under the Industrial Relations Act 1967 (“IRA 1967”), Trade Union Act 1959 (“TUA 1959”) and the Employment Act 1955 (“EA 1955”).
Case: Ismail Nasaruddin Abdul Wahab v Malaysian Airline System Bhd [2022] MLRAU 230
Facts: Ismail Nasaruddin (the “Appellant”) a 25-year employee of Malaysian Airline System Bhd (“MAS”) was also the president of the National Union of Flight Attendants Malaysia (“NUFAM”). MAS (the “Respondent”) was Malaysia’s national airline. The cabin crew personnel of MAS were dissatisfied with the company in 2013 due to the Fleet Realignment Exercise (“FRE”) as it negatively impacted many cabin staff’s schedules and earnings.
Having reported the matter to the Director General of Industrial Relations and being unable to resolve it, the Appellant made a press release regarding the predicament of overworked and underpaid cabin crew workers and emphasised that MAS should establish regulations to safeguard their welfare and safety. In doing so, the appellant demanded the resignation of MAS’s CEO due to his incapacity to handle cabin crew issues during his tenure as MAS’s leader in 2011. The Appellant was then suspended and was sent a show cause letter defining his press release as “severe misconduct” and a violation of “good faith and fidelity” to MAS.
Award: The Federal Court held that:
1. The Appellant’s conduct cannot be labelled as misconduct which warrants dismissal.
2. The Court of Appeal erred by concentrating entirely on the Appellant’s obligations under his contract of employment or collective agreement without giving any or adequate attention to his responsibilities as President of NUFAM.
3. The Court of Appeal also failed to give any consideration as to whether the acts were in furtherance of trade union activity.
a. As such, the Court of Appeal disregarded the statutory provisions of the Employment Act, Industrial Relations Act, and Trade Union Act.
4. The whole of the Appellant’s press release is devoted to difficulties encountered by workers on the job and criticism of management for failing to address these issues.
5. The Appellant did not abuse his office as union president for personal interest.
a. The Appellant’s press release was sent in the name of NUFAM and for the benefit of the hundreds of cabin crew members he represented, with the intention of enhancing working conditions.
b. The Appellant’s press release constituted participation in authorised trade union activity and was not unreasonable, malicious, deliberately or recklessly false.
Managing Union Activities – Employers Should Avoid TIPS
When dismissing union employees on the grounds that they acted beyond the boundaries of union activities, employers should handle with extreme caution. Even if the actions of the union employee resulted in a financial loss or negatively impacted the Company’s image, the employer is advised to evaluate the actions of the union employee to determine whether or not they were done in an effort to promote union operations and conducted in a bona fide manner.
Employers are further advised to AVOID the following actions (TIPS) in relation to managing Union employees:
● Threatening employees with loss of jobs or benefits if they join or vote for a union or engage in protected concerted activity.
● Interrogating employees about their union sympathies or activities in circumstances that tend to interfere with, restrain or coerce employees in the exercise of their rights.
● Promising benefits to employees to discourage their union support.
● Spying on union gatherings or pretending to spy.
