PUTRAJAYA (Jan 20): The Federal Court on Thursday (Jan 20) allowed National Union of Flight Attendants Malaysia (Nufam) president Ismail Nasaruddin Abdul Wahab’s appeal against his unlawful dismissal by Malaysian Airline System Bhd (MAS) in 2013 because he did not abuse his position as the Nufam leader when he issued a statement aimed at improving flight attendants’ welfare.
The three-member bench led by Federal Court Judge Datuk Nallini Pathmanathan also upheld the damages amounting to RM211,444.56 awarded by the Industrial Court of Malaysia to Ismail Nasaruddin.
“The statement issued was not malicious and was done in the interest of the thousands of flight attendants.
“The appellant did not abuse the platform of being the leader of Nufam, and it was done in the interest and improvement of the flight cabin crew.
"Hence, we allow the appeal and the decision of the Court of Appeal is set aside,” Justice Nallini said.
The judge also ordered MAS, which is now known as Malaysia Airlines Bhd, to pay costs amounting to RM50,000 to Ismail Nasaruddin.
The three-member bench included Federal Court Judges Datuk Seri Hasnah Mohammed Hashim and Datuk Harmindar Singh Dhaliwal.
In a unanimous decision, Justice Nallini said the Court of Appeal erred in its interpretation of the employment contract involving Ismail Nasaruddin.
Representing Ismail Nasaruddin were lawyers Datuk Ambiga Sreenevasan and Lim Wei Jiet.
MAS, meanwhile, was represented by lawyer N Sivabalah.
Prior to the Federal Court, the Industrial Court, High Court and Court of Appeal had heard the case.
It was reported that after Ismail Nasaruddin was dismissed by MAS in 2013, he brought the matter to the Industrial Court, which rejected his attempt to challenge MAS' dismissal.
He subsequently filed a judicial review in the High Court against the Industrial Court's decision.
In September 2019, the High Court ruled that MAS’ decision to dismiss Ismail Nasaruddin was unlawful and asked the Industrial Court to evaluate his compensation.
Following the evaluation, the Industrial Court instructed MAS to pay compensation amounting to RM211,444.56 to him.
MAS then appealed in the Court of Appeal against the High Court’s decision.
On Oct 7, 2020, the Court of Appeal allowed MAS’ appeal after concluding that there were other legal measures that Ismail Nasaruddin should have pursued before issuing the press statement highlighting the plight of MAS workers and calling for the company’s chief executive officer to resign.
The Court of Appeal set aside the compensation of RM211,444.56 awarded to Ismail Nasaruddin and ordered him to pay RM5,000 in costs to MAS.
Ismail Nasaruddin subsequently appealed in the Federal Court against the Court of Appeal’s decision.
In the Federal Court on Thursday, Justice Nallini, while explaining the court’s decision to allow Ismail Nasaruddin’s appeal, said: "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 concerned are strenuous and/or carried out maliciously or in a manner which knowingly or recklessly disregards the truth.
“It is plain to us that the statement made by the appellant was not malicious or knowingly or recklessly false or wholly unreasonable or extremist. We accept that the contents of the press statement wholly related to problems faced by employees at the workplace and criticism of the management for failing to address the same.
“We do not think the appellant abused the platform for his personal interest but that it was all done in the name of Nufam, and for the benefit of the thousands of cabin crew members [who were represented by Ismail Nasaruddin].
“In short, it (the statement) was made with the view to improve workplace conditions, hence we allow the appeal and the decision of the Court of Appeal is set aside,” Justice Nallini added.