Wednesday, September 04, 2019

High Court decides Union President Wrongfully Dismissed by Malaysian Airlines(MAS) - a decision almost 6 years after dismissal?

The High Court today decided that the Ismail Nasaruddin, the President of NUFAM(National Union of Flight Attendants Malaysia) was wrongfully dismissed by MAS (the Malaysian Airlines). In so doing, it overturned the decision of the Industrial Court, and send the case back to the Industrial Court to calculate and determine damages in lieu of reinstatement. [Reinstatement may be difficult because the Malaysian Airlines is today operated by a new company  - which in fact was created by the same owner(being really the government or government agency) of the old company MAS. The Malaysian Government then enacted a new law that amongst others frees the new company from any liabilities owed by the old MAS even to its workers...is it right?]. In my opinion, rightfully and justly, he should be reinstated ...

On 29/11/2013 MAS wrongly terminated Ismail Nasaruddin, the President of NUFAM, without even having a Domestic Inquiry, hence denying him the right to be heard and a fair hearing. Ismail was first suspended and then terminated allegedly by reason of a statement he issued in his capacity as President of NUFAM, which appeared in the media, which amongst others stated :- ‘…NUFAM Secretariat said it is calling on the prime minister to review Jauhari's contract and remove him as the CEO of MAS, which is a government appointed position, unhappy that there has been no changes in resolving the cabin crew's problems…’ It also raised other worker issues (The Sun Daily, 8/11/2013, NUFAM calls for resignation of MAS' CEO).

MAS send him a show cause letter on 8/11/2013, which also immediately suspended him. Thereafter, Ismail received another letter terminating him on 29/11/2013. According to a Malaysiakini report, it is alleged that MAS said Ismail had acted in contradiction with his duties as a chief steward of the airline by issuing the statement.(Malaysiakini, 14/11/2011, MAS suspends chief steward for criticising CEO). This is absurd as the statement was issued in the capacity of a Union President, not a mere employee whereby even an ordinary employee should never be denied his freedom of opinion or expression.

In response, 43 civil society groups and trade unions, including the International Trade Union Confederation(ITUC), issued a Joint Statement on 3/12/2013, entitled, MAS Must Immediately Revoke Suspension of Union President Ismail Nasaruddin Worker Right Issue Should Be Resolved By Negotiations Not ‘Union Busting’. 
 
Since then other office bearers and/or members of the Union were also targeted  - see also the Joint Statement of 54 groups and unions:- Malaysian Airlines Must Respect Trade Union and Worker Rights Cease Anti-Union activities against NUFAM and its members
 
When we get the written judgment, we would try to share it as well.. .
 
Too many UNION leaders in Malaysia have been terminated for being active and struggling for worker and union rights ... Does Malaysian government want workers to enjoy freedom of association - have unions - and be able to fight to defend and promote worker rights - if so, these 'union busting' must end....targeting union leaders and active members must end ...
 
Should the government intervene by law, and decide what will be considered 'serious employment misconducts' or 'breaches of employment contracts' that warrants dismissal... Now, the employer in an employment contract is just 'too powerful' and many have inserted absurd  and unjust 'employment misconducts'...
 
Anyway, this is a VICTORY for Trade Unions and Workers in Malaysia ...and hopefully, Malaysian Airlines(a wholly government owned company) will elect not to appeal this decision...and yet again delay justice...Ismail Nasaruddin was wrongfully dismissed in November 2013 - that is almost 6 years ago... it is shocking how slow these cases run. In Indonesia, the law states that such dismissal cases should end within 160 days, at this includes at the highest court of appeal???


 
 
See also:-
 
 

Unlawful for MAS to sack employee for union activities, court rules

Published:  |  Modified:
    In a landmark decision, the Kuala Lumpur High Court ruled today that Malaysia Airlines' dismissal of an employee for participating in union activities is unlawful.

Judge Nordin Hassan ruled that MAS was disproportionate in sacking National Union of Flight Attendants Malaysia (Nufam) president Ismail Nasaruddin for highlighting the plight of employees and calling for the resignation of its CEO in an interview.

"The real reason for MAS’ dismissal of Ismail was his participation in trade union activities, which is prohibited under the law," he said, as reported by Free Malaysia Today.

Nordin allowed Ismail's judicial review application, and quashed an earlier decision by the Industrial Court, which upheld the sacking.

MAS was also ordered to compensate Ismail (photo) for unlawful dismissal, with the amount to be assessed by the Industrial Court.
According to Ismail's lawyer Lim Wei Jiet, this is the first time that the High Court has deemed it unlawful for an employee to be dismissed for heading a trade union.

"Trade union leaders play a crucial role in the fight for better working conditions of millions of workers in Malaysia, often putting their jobs and livelihoods on the line.

"It is encouraging to know that a High Court has lent its support to these brave individuals,” he said, adding that he hopes the decision will protect unions from companies determined to crack down on such activities.

In 2013, Ismail spoke to the press about overworking, underpaid salaries, as well as health and safety issues due to MAS' fleet realignment exercise and weight loss programme.
 
He was sacked by the airline after the interview - Malaysiakini, 4/9/2019

Landmark High Court decision against Malaysia Airlines empowers union leaders

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The High Court says it disproportionate for MAS to dismiss the president of the National Union of Flight Attendants Malaysia for giving an interview in the course of trade union activities.
KUALA LUMPUR: The High Court here has ruled that it is unlawful for Malaysia Airline System Bhd (MAS) to dismiss a trade union leader for issuing a press statement to highlight the plight of workers and to call for the CEO’s resignation.

Judge Nordin Hassan said it was also disproportionate for MAS to dismiss Ismail Nasaruddin, who was president of the National Union of Flight Attendants Malaysia (NUFAM), for giving the interview in the course of trade union activities.

“The real reason for MAS’ dismissal of Ismail was his participation in trade union activities, which is prohibited under the law,” he said in allowing a judicial review application by Ismail.

The judge also quashed the earlier award of the Industrial Court and ordered that compensation be given to Ismail for unlawful dismissal.
The Industrial Court will assess the compensation which is in lieu of reinstatement.
Ismail Nasaruddin.
In 2013, Ismail gave an interview to The Sun Daily to highlight the concerns of workers in relation to claims of overwork, underpayment of salaries, health and safety issues due to MAS’ fleet realignment exercise and weight loss exercise.

MAS found this to be in breach of Ismail’s duties in the company and dismissed him.

Ismail then went to the Industrial Court to get his job back but early this year , the tribunal upheld MAS’s decision to sack the employee.

Lawyer Lim Wei Jiet  represented Ismail while N Sivabalah and Jamie Goh. appeared for MAS.

Lim said this was a landmark case because it was the first time the High Court had decided that it was unlawful for a company to dismiss a trade union leader for issuing press statements in the course of carrying out his union work.

“Trade union leaders play a crucial role in the fight for better working conditions of millions of workers in Malaysia, often putting their jobs and livelihoods on the line.

“It is encouraging to know that a High Court has lent its support to these brave individuals,” he said.

Lim said hopefully this decision could empower trade union leaders to have the courage to defend workers’ rights and that it would shield trade union leaders from companies which are determined to clamp down on union activities unlawfully. - FMT, 4/9/2019

 

Mahkamah buat keputusan bersejarah sokong pemimpin kesatuan sekerja dipecat MAS


Hakim Mahkamah Tinggi mengarahkan MAS membayar pampasan kepada Ismail Nasaruddin yang dipecat secara salah pada 2013. (Gambar Facebook)
KUALA LUMPUR: Mahkamah Tinggi di sini memutuskan Malaysia Airline System Bhd (MAS) menyalahi undang-undang dengan memecat seorang pemimpin kesatuan sekerja kerana mengeluarkan kenyataan bagi menyuarakan aduan pekerja dan menggesa ketua pegawai eksekutifnya meletak jawatan.

Hakim Nordin Hassan berkata, tidak adil untuk MAS memecat Ismail Nasaruddin yang merupakan presiden Kesatuan Kebangsaan Anak Kapal Kabin Penerbangan Malaysia (Nufam) kerana beliau menerima wawancara media ketika kesatuan sekerja itu mengadakan aktivitinya.

“Alasan sebenar MAS memecat Ismail ialah penyertaannya dalam aktiviti kesatuan sekerja yang dilarang undang-undang,” katanya yang membenarkan permohonan semakan kehakiman difailkan Ismail.

Hakim turut membatalkan keputusan Mahkamah Perusahaan dan mengarahkan pampasan diberikan kepada Ismail kerana dipecat secara salah.
Mahkamah Perusahaan akan menilai jumlah pampasan bagi menggantikan pengembalian jawatan kepada Ismail.

Pada 2013, Ismail membenarkan The Sun Daily mewawancaranya untuk menyuarakan kebimbangan pekerja atas dakwaan kerja berlebihan, gaji rendah, isu kesihatan dan keselamatan akibat pengaturan semula pesawatnya serta arahan penurunan berat badan.

MAS mendapati ia melanggar tanggungjawab Ismail dalam syarikat itu dan memecatnya.

Ismail kemudiannya ke Mahkamah Perusahaan untuk mendapatkan semula jawatannya, tetapi awal tahun ini, tribunal itu memihak kepada keputusan MAS atas pemecatan Ismail.

Peguam, Lim Wei Jiet yang mewakili Ismail menyifatkan ia adalah kes bersejarah kerana Mahkamah Tinggi pertama kali memutuskan salah untuk syarikat memecat seorang pemimpin kesatuan sekerja kerana mengeluarkan kenyataan media ketika melakukan kerja kesatuan.

“Pemimpin kesatuan sekerja memainkan peranan penting dalam memperjuangkan keadaan kerja lebih baik bagi berjuta pekerja di Malaysia, yang sering mempertaruhkan kerja dan mata pencarian mereka.

“Amat gembira untuk tahu Mahkamah Tinggi memberikan sokongan kepada individu berani ini.”

Lim berharap keputusan ini akan memperkasakan pemimpin kesatuan sekerja untuk berani mempertahankan hak pekerja dan melindungi mereka daripada syarikat yang menyalahi undang-undang dengan bertekad mengawal aktiviti kesatuan. - FMT, 4/9/2019

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