PUTRAJAYA (Oct 7): The Court of Appeal today ruled in favour of Malaysia Airlines System Bhd (MAS), as it overturned a High Court's decision that the dismissal of National Union of Flight Attendants Malaysia (NUFAM) president Ismail Nasaruddin was unlawful.
In allowing MAS' appeal, Court of Appeal Judges Datuk Hanipah Farikullah, Datuk Lee Heng Cheong, and Gunalan Muniandy concluded that there were other legal measures that Ismail should have pursued before issuing a press statement highlighting the plight of workers and calling for the chief executive officer's (CEO) resignation.
"The decision of the High Court is set aside. The award of the Industrial Court is hereby affirmed," Hanipah said in the ruling, as she leads the three-member panel of judges.
As such, the compensation of RM211,444.56 previously awarded to Ismail has been set aside. The appellate court also ordered Ismail to pay RM5,000 to MAS in costs.
During the appeal proceedings today, Ismail's lawyer Lim Wei Jiet submitted that the law provides protection for union officials to participate in trade union activities and that issuing a press statement is in fact a trade union activity.
On the other hand, lawyer Sivabalah Nadarajah, representing MAS, argued that Ismail was first and foremost an employee of MAS, and that although he was a union official, issuing a press statement that disparages the company is unlawful and not protected under the law.
"Unfortunately the court did not accept my argument, and decided otherwise," Lim told The Edge when approached after the appeal proceedings.
"I will discuss with my client whether we can exercise the option to appeal [to the Federal Court], but it has not been decided yet," he added.
In September last year, the High Court ruled that Ismail's dismissal for participating in union activities was unlawful, with Justice Nordin Hassan, who is now a Court of Appeal judge, ruling that it was disproportionate for MAS to dismiss Ismail for giving an interview in the course of trade union activities.
The judge quashed the earlier award of the Industrial Court and ordered that compensation be given to Ismail for unlawful dismissal. In the landmark ruling, Nordin remitted the case to the Industrial Court to assess the compensation.
Following that, the Industrial Court awarded RM211,444.56 in compensation to Ismail.
In 2013, Ismail gave an interview to The Sun 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.
He also called for the resignation of then CEO Ahmad Jauhari Yahya, claiming the former CEO had failed to make changes in resolving the cabin crew's problems, which had demoralised the employees, since he took over the helm in September 2011.
MAS found this to be in breach of Ismail's duties in the company and dismissed him in November 2013.
Ismail, represented by Lim, then went to the Industrial Court to get his job back but early last year, the tribunal upheld the sacking, which was then quashed by the High Court's ruling in September.
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