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DISMISSAL FOR UNLAWFUL PICKETING... TOO HARSH?

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THE FACTS The appellants, who were members of the National Union of Bank Employees ("NUBE"), were employees of the second respondent, Bumiputra Commerce Bank Berhad. They participated in a trade union picketing in relation to a trade dispute between NUBE and the second respondent. However, the second respondent alleged that the picketing was unlawful as it was conducted within the premises, and that the appellants’ conduct had disrupted their business and operations. Upon a thorough investigation and subsequent domestic inquiry, the appellants were found guilty for misconduct and their services were thereafter terminated.

INDUSTRIAL COURT The Industrial Court/first respondent upheld the second respondent's decision to terminate the appellants’ services and held that although the misconduct was minor, the punishment of dismissal was necessary as such misconduct affected the second respondent’s goodwill in the banking industry.

THE HIGH COURT The appellants filed an application for judicial review to quash the award, and contended that the first respondent had failed to consider relevant matters and erred in arriving at a totally perverse decision. The High Court ruled in favour of the first respondent and concluded that no error of law was committed in respect of the findings of facts relating to the appellants’ misconduct.

THE COURT OF APPEAL An appeal was then filed to the Court of Appeal on the basis that the dismissal was too harsh and actuated by discriminative practice. The Court of Appeal unanimously dismissed the appellants’ appeal and ruled that since there was grave misconduct involving the core of the second respondent’s existence, dismissal would have been the inevitable punishment.

"The Federal Court noted the fact that the second respondent was in the banking industry and the banking industry belonged to a special kind of business and services rendered to the public. Therefore a high standard of care and conduct was expected of an employee in the banking industry." – per Hasan Lah FCJ


THE FEDERAL COURT The issues before the Federal Court were, namely, (1) whether the appellants’ misconduct constituted just cause or excuse for dismissal; (2) whether the punishment of dismissal was too harsh; and (3) whether a high standard of conduct is expected from employees in the banking industry.

THE DECISION The Federal Court dismissed the appellants' appeal and held that there was no fixed rule of law to suggest that employees with unblemished records of service should not be dismissed for a single instance of insolence. It is important to consider the nature of the misconduct, whether they showed any remorse, and the nature of the employer’s business. As the appellants' misconduct was clearly an act of wilful disobedience to which they showed no remorse, the dismissal was justified. Furthermore, the banking industry belonged to a special kind of business which renders services to the public, and therefore a high standard of conduct was expected of its employees.
 

"The Federal Court agreed with the observation made by the Court of Appeal that the charge against the appellants was a very grave misconduct involving the core of the second respondent’s business and the appellants must have been aware that dismissal would have been the inevitable punishment." – per Hasan Lah FCJ


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