“Whether or not press statements made by an employee in his capacity as a trade union officer or member, against his employer should warrant his dismissal?”

ISMAIL NASARUDDIN ABDUL WAHAB v MALAYSIAN AIRLINE SYSTEM BHD [2022] MLRAU 230

• The Respondent, Malaysian Airlines Berhad (“MAS”) was the national carrier of Malaysia.

• The Appellant, Ismail Nasaruddin (“Ismail”) was an employee of Malaysian Airline System Bhd (“MAS“) for 25 years.

• At the material time, Ismail was also the President of the National Union of Flight Attendants Malaysia (“NUFAM“).

• Sometime in 2013, the cabin crew employees of MAS were disgruntled and unhappy with MAS for the following reasons:

         i)  Weight Loss Exercise, a company ruling mandating the reduction of weight to achieve a certain BMI.

        ii)  Fleet Realignment Exercise (“FRE“), which severely affected many cabin crew’s schedules and wages.

• Ismail referred the FRE issue to the Director General of Industrial Relations as a trade dispute.

• Ismail and MAS failed to resolve the above issues.

• Ismail in his capacity as President of NUFAM then issued a press statement where he highlighted inter aliathe plight of overworked and underpaid cabin crew members, and urged MAS to enact policies to ensure their welfare and safety.

• In the course of doing so, Ismail called for the resignation of the CEO of MAS as a result of the latter’s inability to resolve the problems faced by the cabin crew under his leadership of MAS in 2011.

• Ismail was ultimately dismissed by MAS for issuing the abovementioned press statement.

• Ismail challenged his dismissal at the Industrial Court but was unsuccessful for the reason that they found the dismissal was with just cause and excuse.

• Ismail challenged the decision at the High Court and the High Court reversed the decision by the Industrial Court.

• MAS appealed to the Court of Appeal, whereby their appeal was allowed.

• Ismail then appealed to the Federal Court.

• Federal Court held that the Court of Appeal erred by focusing solely on Ismail’s obligations under his contract of employment or collective agreement without according sufficient consideration to his duties as President of NUFAM.

• The Court of Appeal also failed to give any consideration as to whether the acts were in furtherance of his trade union activity.

• The Federal Court further held that the contents of Ismail’s press statement relate wholly to problems faced by employees at the workplace and criticism of the management for failing to address the same.

• The Federal Court also held that Ismail did not abuse his office as union president for personal interest.

• The press statements were made in the name of NUFAM and for the benefit of the thousands of cabin crew members he represented with a view to improve workplace conditions.

• In light of these circumstances, the Federal Court held that Ismail’s press statement amounted to participation in the lawful activities of a trade union and was not unreasonable, malicious, or knowingly or recklessly false.

• In conclusion, 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 are extraneous to trade union affairs, or were carried out maliciously, or in a manner which knowingly or recklessly disregards the truth.