(b) to participate in the activities of a registered trade union, whether as an officer of such union or otherwise; ...” Section 8 fortifies the position that a workman cannot be dismissed by reason of his participation in trade union activity alone. [27] The other provision which is of peripheral relevance is section 21 of the TUA. Section 21 of the TUA states as follows: “No suit or other legal proceeding shall be maintainable in any civil court against any registered trade union or any officer or member thereof in respect of any act done in contemplation or in furtherance of a trade dispute to which a member of the trade union is a party on the ground only that such act induces some other person to break a contract of employment, or that it is an interference with the trade, business or employment of some other person or with the right of some other person to dispose of his capital or of his labour as he wills.” [28] In essence it affords protection not only to a registered trade union but to a member of the same if he participates in an act done in furtherance of a trade dispute and which causes some other person to break his contract of employment or which has the consequence of interfering with the trade business or employment of some other person. While not directly relevant in the instant case as there was no such consequence to any other person, it evidences the extent to which bona fide trade union activities are protected by the legal framework in the TUA. [29] Section 22 of the TUA also provides immunity for tortious acts to the trade union itself albeit committed by a member or officer of the trade union. It is therefore directly relevant to trade unions rather than providing individual protection for members of the union. [30] We now turn to consider whether the termination or suspension of the Union Leader was with just cause or excuse under section 20(1) of the IRA. The primary issue in the instant case turns on whether the dismissal was with just cause or excuse or by reason of the Union Leader’s breaches of his contract of employment as a workman, or whether his dismissal was tainted by his being punished for statements he made in furtherance of his duties as union leader in relation to the dispute that subsisted between the employer and NUFAM relating to the welfare of the cabin crew. In other words, was he victimised by reason of his position as the Union Leader of NUFAM? Was he subjected to unfair labour practice or victimised as a consequence of his position as the Union Leader of NUFAM? [31] According to to O.P. Malhotra, The Law of Industrial Disputes, 5th ed., Vol. 2 (India: Universal Law Publishing, 1998) at 1669-1670: “The expression ‘victimisation’ has not been defined in the statute and is not in any sense a term of law or art. It is an ordinary English word which means that (a) certain person has become a victim, in other words, that he has been unjustly dealt with … … Victimisation may partake of various forms, such a pressurising an employee to leave the union or union activities, treating the employee unequally or in an obviously discriminatory manner, for the sole reason of his connection with union or his particular union activities; inflicting a grossly monstrous punishment which no rational person would impose upon such an employee. For instance, if for a very trifle or venial breach of duty, the employer proposes to dismiss a workman, the Tribunal may well consider, whether the employer in imposing the punishment, which was out of all proportion to the misconduct of which the workman was guilty, was not motivated by some other factor than the maintenance of discipline and the just protection of the employer.” [32] In the instant appeal, this aspect of the law appears to have been given no consideration by the employer in determining that the Union Leader’s employment be terminated. This aspect, namely the Union Leader’s issuance of statement in his capacity as a Union Leader, comprises an integral part of his contract of employment and therefore cannot be disregarded when determining whether his employment should be terminated. In other words, his role as a Union Leader of NUFAM is inextricably intertwined with his employment as a steward with MAS. It therefore became incumbent upon the employer to consider the dual aspects of his work as well as the statutory provisions affording him protection in relation to his trade union activities before arriving at a decision to dismiss him. This was not done. It would be pertinent to consider the law both in our and other jurisdictions in relation to his issue. [33] In Workmen of Williamson Magor & Co Ltd v Williamson Magor & Co Ltd [1982] 1 LLJ 33 SC the Indian Supreme Court accepted the interpretation of the word ‘victimisation’ as the normal meaning of being the ‘victim of unfair and arbitrary action’. Malaysia [34] The concept of ‘victimisation’ is not unknown to Malaysian law. It was referred to by the Court of Appeal in the case of Harris Solid State (M) Sdn Bhd & Ors v Bruno Gentil S/O Pereira & Ors [1996] 3 MLJ 489. Harris is authority for the proposition that an employer may reorganise its commercial undertaking for any legitimate reason, such as promoting better economic viability, but it must not do so for a collateral purpose, for example, to victimise its employees for their legitimate participation in union activities. The Court of Appeal held that on the issue of victimisation, the proper question that the employment tribunal should have asked was whether the totality of the evidence, objectively viewed, reasonably supported the conclusion that the claimants were terminated because of their union activities. Canada [35] Canadian authorities have expressed a similar sentiment. In Toronto (Municipality) v Canadian Union of Public Employee [1997] O.L.A.A. No 893, the Toronto Labour Arbitrator was cognizant that union representatives are often required to challenge managerial decisions, and that as “front line advocates”, they must be able to discharge their responsibilities without the threat of being disciplined by their employer. The protection is not unlimited and does not cover statements or actions which are knowingly or recklessly false or malicious, or illegal activity. [36] In Canada Post Corp and CUPW (Van Donk) [1990] C.L.A.D. No. 18, it was pointed out that it would be unrealistic not to expect union representatives to express “strong disagreement” with employers in “vivid and unflattering” terms in the course of discharging their responsibilities where union business is concerned, and that such statements from union stewards must be protected unless they are “malicious in that they are knowingly or recklessly false.” Australia [37] In Shearer v Everritt & Ors BC9806060 the claimant was an employee of the Waverley RSL Club, an establishment providing bar and licensed gaming facilities. He was also a union delegate. The respondents were members of its management committee. The claimant’s employment was subsequently terminated by the respondents for the following reasons: 1) unsatisfactory attitude complaints from member and staff; 2) failure to attend shift as per the bar roster; 3) failure to correctly sign into the Club when not on duty; 4) a number of other matters that were the subject of counselling and/or official warnings. It was alleged by the Club that the claimant had breached a confidentiality clause in the staff Code of Conduct which prohibits employees from discussing Club matters and the running of the Club, by distributing to members of the Club a petition prepared by the union to contest an application to reduce wages and conditions at the Club. The respondents’ general manager also claimed that the claimant was insubordinate and threatening towards the employer’s official representative in discussing an industrial dispute involving another employee. In short the respondents sought to prove that through a series of incidents during his employment the claimant was guilty of misconduct and it was this misconduct the respondents relied on when terminating the claimant’s employment. The Federal Court of Australia found that much of the excessive and unreasonable disciplinary action taken against the claimant was causally linked to the claimant's role and activities as a union delegate and it followed that his termination was probably motivated in whole or in part by one or the other of the statutorily proscribed reasons. Europe [38] In the Case of Palomo Sánchez and Others v. Spain (Applications nos. 28955/06, 28957/06, 28959/06 and 28964/06), the European Court of Human Rights (‘ECtHR’) observed that under the applicable law in the Member States of the Council of Europe, any abuse of freedom of expression is capable of justifying disciplinary measures including dismissal, and for that purpose, factual elements of an objective nature are taken into account, such as: the seriousness of the misconduct; the characterisation of the comments, the extent of their publication, and also certain subjective elements, the latter of which includes the question of whether the conduct falls outside normal trade union activity. [39] In Danilenkov & Ors v Russia (Application no. 67336/01), members of the Dockers’ Union of Russia who participated in a two-week strike calling for salary increases and better working conditions and health and life insurance were dismissed as a result of the structural reorganisation of the seaport company they were employed at. Here, the ECtHR stressed in particular that any employee or worker should be free to join, or not, a trade union without being sanctioned. It then found crucially important that individuals affected by discriminatory treatment should be provided with an opportunity to challenge it and to have the right to take legal action capable of ensuring real and effective relief. [40] The ECtHR observed that the employer had used various techniques to encourage employees to relinquish their union membership, including their re-assignment to special work teams with limited opportunities, dismissals subsequently found unlawful by the courts, decrease of earnings, disciplinary sanctions, etc. In addition, despite the existence in Russian civil law at the time of a blanket prohibition against discrimination on the ground of trade union membership or non-membership, the judicial authorities had refused to examine the applicants’ discrimination complaints having held that discrimination could only be established in criminal proceedings. Consequently, it was held that there was a violation of Article 14 (prohibition of discrimination) in conjunction with Article 11 of the European Convention on Human Rights (‘ECHR’), Russia having failed to provide clear and effective judicial protection against discrimination on the grounds of trade union membership. [41] In Ognevenko v Russia (Application No. 44873/09) the Rosprofzhel trade union in Russia, of which the applicant train driver was a member, decided to a call a strike in April 2008 after the failure of wage and bonus negotiations. The railway company did not apply to the courts to have the strike declared unlawful and the applicant took part in it. The applicant arrived for work on the day of the strike, but refused to take up his duties. The strike caused delays in the sector where the applicant worked and he was dismissed for disciplinary breaches, including taking part in the strike. [42] The ECtHR held that there had been a violation of Article 11 of the ECHR, finding that the applicant’s dismissal had been a disproportionate restriction on his rights. It noted, in particular, that train drivers and some other types of railway workers were included in occupations which were prohibited from striking. That restriction had not been sufficiently justified by the Russian Government and was in conflict with internationally recognised labour rules. The ECtHR observed that sanctions such as dismissals inevitably had a “chilling effect” on others who might consider striking to protect their interests. United Kingdom [43] The law governing unfair dismissals in the UK is not dissimilar to the position here. In Lyon v St James Press Ltd [1976] ICR 413 two employees were dismissed for soliciting colleagues to join a trade union. The industrial tribunal found that the employer was entitled to take objection to the way in which the applicants had solicited their colleagues, including the fact that they had not told the employer what they were doing. The decision of the industrial tribunal was reversed by the Employment Appeal Tribunal (‘EAT’). Phillips J acknowledged that it was possible to make a distinction between a dismissal for carrying out trade union activities and a dismissal for misconduct occurring in the context of such activities. He explained that protection for trade union activities is not an excuse for conduct which ordinarily would justify dismissal; equally, the right to take part in the affairs of a trade union must not be obstructed by too easily finding acts done for that purpose to be a justification for dismissal. Philips J identified “wholly unreasonable, extraneous or malicious acts” as examples which could potentially fall outside the scope of statutory protection afforded to trade union activities. [44] In Bass Taverns Ltd v Burgess [1995] IRLR 596 an employee who was a shop steward was invited by the employer to give a presentation at an induction course for new employees at which they could be encouraged to join the union. During the presentation he made comments highly critical of management's attitude to health and safety which he later accepted were “over the top”. He was demoted. The employee claimed that his demotion constituted a constructive unfair dismissal for taking part in trade union activities. The industrial tribunal dismissed his claim in that regard but its decision was overturned by the EAT. The employer’s appeal was dismissed by the English Court of Appeal. Pill LJ opined that the employee was plainly taking part in trade union activities in making the remarks in question and that there was “nothing beyond the rhetoric and hyperbole which might be expected at a recruiting meeting for a trade union”. Pill LJ further held that the employee’s admission that he had gone over the top could not support the conclusion that in law the contents of the speech were outside the scope of trade union activities. [45] Lyon and Bass Taverns were both referred to in Morris (Appellant) v Metrolink RATP Dev Ltd [2018] EWCA Civ 1358. In Morris, the claimant was dismissed for storing and circulating confidential information. He challenged his dismissal as unfair, inter alia, under section 152(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULR”), because he had been dismissed for carrying out trade union activities. The claimant argued that he had used the information not solely for his own benefit but as part of a collective grievance on his members’ behalf. [46] Under section 152(1)(b) of the TULR, the dismissal of an employee is regarded as unfair if it or the principal reason for the dismissal was that the employee had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time. This is broadly in line with paragraph 5(1)(b) of our IRA. [47] In Morris Underhill LJ recognized that there would be cases where a dismissal in the course of trade union activities would fall outside the scope of section 152(1)(b). He identified these as acts which are “wholly unreasonable, extraneous or malicious”. However, His Lordship also remarked that the protections introduced by the TULR should not be undermined and that employees “should not lose that protection simply because something which he or she does in the course of trade union activities could be said to be ill-judged or unreasonable” (see paras 19-20). [48] In University College London v Brown UKEAT/0084/19/VP, the claimant was an IT Systems Administrator for University College London (‘UCL’). He was also an active member and elected representative of the University and College Union, a trade union recognised by UCL. The claimant was issued a formal disciplinary warning for refusing to implement management’s request to delete an email distribution list used, inter alia, for circulating communications from the trade union. He challenged the issuance of the warning on the ground that he had suffered a detriment by reason of taking part in union activities. The Employment Tribunal (‘ET’) concluded that the claimant’s acts of creating the list and his refusal to take it down constituted protected trade union activity, and that the main purpose of disciplining him was to penalise him for taking part in trade union activities. The ET’s decision was upheld by the EAT. Our Analysis and Decision [49] Historically, union representation and collective bargaining have been integral to the growth of a stable working population in developed economies, and have made it possible for employees to receive a more equitable share of the wealth that they create (see “The Changing Roles of Trade Unions in India: A Case Study of National Thermal Power Corporation (NTPC), Unchahar”, Asian Academy of Management Journal, Vol. 14, No. 1, 37–57, January 2009 at 38). Strong trade unions protect basic worker and human rights by pushing for better working conditions and job security. [50] It is trite that the interpretation of an Act should be undertaken with the purpose and object of the Act in mind. In Bursa Malaysia Securities v Mohd Afrizan Husain [2022] 4 CLJ 657, this Court referred to section 17A of the Interpretation Acts 1948 and 1967 and expressed the view that in the construction of statutes, any reading which is purely textual, as opposed to contextual, is to be rejected. Therefore the provisions of the Acts relating to union representation and prohibiting discrimination against workmen in their employment by reason of participation in trade union activities should be construed contextually and holistically rather than each provision being read in vacuo within each statute. Ultimately the various sections harmonise with each other in their common purpose to prohibit victimisation of a workman for his trade union activities. The IRA [51] The IRA has been judicially recognized as a piece of social legislation, to be construed liberally. In Kesatuan Kebangsaan Wartawan Malaysia & Anor v Syarikat Pemandangan Sinar Sdn Bhd & Anor [2001] 3 MLJ 705, this Court opined that: “ … the IRA is a piece of social legislation whose primary aim is to promote social justice, industrial peace and harmony in the country. As such, the approach to interpretation must be liberal in order to achieve the object aimed at by Parliament. This had been described by Lord Diplock as the 'purposive approach', an approach followed by Lord Denning in Nothman v Barnet London Borough Council [1978] 1 WLR 220, who reiterated that in all cases involving the interpretation of statutes, we should adopt a construction that would promote the general legislative purpose underlying the provision.” [52] The preamble of the IRA states that it is an Act: “ … to promote and maintain industrial harmony and to provide for the regulation of the relations between employers and workmen and their trade unions and the prevention and settlement of any differences or disputes arising from their relationship and generally to deal with trade disputes and matters arising therefrom.” [53] We note that the IRA, which consolidated all previous laws concerning industrial disputes, contains several protective measures for trade unions as a peace offering meant to forestall opposition to permanent compulsory arbitration, and that it was legislated not only to safeguard the legitimate rights and interests of employers and workers or their trade unions, but also to ensure the speedy and just settlement of industrial disputes, so that public and national interests are not prejudiced while the parties promote their own particular interests (see Parliamentary Debates, Dewan Rakyat, Second Parliament, Fourth Session, 22 June 1967, 1531-1532 (V Manickavasagam)). The TUA [54] The TUA, on the other hand, was enacted amid government support for “the growth of national, responsible, strong and free trade unions.” (see Parliamentary Debates, Dewan Rakyat, Second Parliament, Second Session, 10 August 1965, 1733 (V Manickavasagam)). [55] In our opinion, while there are certain statutory restrictions imposed on trade union officers or members in performing their functions, the legislative scheme in place does not prohibit the issuance of press statements by trade union officers or members. Furthermore, if reference is made to the International Labour Organisation’s 1994 publication titled “Freedom of Association and Collective Bargaining: Trade Union Right and Civil Liberties” the “right to express opinions through the press or otherwise” is described as an “essential aspect of trade union rights” (see International Labour Organisation, Freedom of Association and Collective Bargaining, 1994, para 38). [56] Our discussion above discloses that throughout many jurisdictions, activity which can properly be regarded as trade union activity is protected against reprisals by the employer. What constitutes trade union activity is ultimately a question of fact dependent on the factual matrix of a case. In our opinion, acts which are closely connected to an employee’s role as union representative ought to come within the scope of trade union activities protected by law. It is when those acts are knowingly or recklessly false, or when they become tainted by unreasonableness, malice, or illegality, that they would fall outside the scope of protection afforded by law. Furthermore, given the provisions of section 8 of the Employment Act 1955, it would not suffice to merely look at the contents of the employment contract. Section 8 of the Employment Act fortifies the position that a workman cannot be dismissed by reason of his participation in trade union activity alone. We pause to note here that under section 20 of the IRA, the onus is on the employer to establish that the dismissal was with just cause and excuse. It is not for the workman to establish that the dismissal was unfair: Ng Chang Seng v Technip Geoproduction (M) Sdn Bhd & Anor [2021] 1 CLJ 365 CA. [57] It is therefore clear that it is incumbent on the employer to undertake the exercise of assessing whether the conduct in question falls within the scope of trade union activity for the furtherance of or in the interest of trade union affairs or whether it exceeds such scope of activity. It must be recalled that in the instant appeal, such an exercise was not undertaken at all. The Test [58] What then is the test to be utilised when determining whether an act of alleged misconduct which involves engagement in trade union activities amounts to misconduct warranting disciplinary action or dismissal? The following considerations should assist both an employer and a workman in determining this issue:- i. The alleged act of misconduct should be identified; ii. Was the alleged act of misconduct related to a trade union activity? iii. Was the alleged act of misconduct complained of by the employer closely connected with and carried out in the workman’s role as a union representative? Or iv. Was the alleged act of misconduct while (stated to be) carried out by the workman, purportedly in the course of his activities as a union representative, knowingly or recklessly false, or tainted with malice, illegality and unreasonableness such that it could not reasonably be said to fall within the scope of bona fide trade union activity? v. An example of this would be the case of Palomo Sánchez (supra). Here the employees were dismissed for publishing a cartoon showing their colleagues giving sexual favours to the director of human resources. The ECtHR held that the employees’ dismissal had not been a manifestly disproportionate or excessive sanction, requiring the state to afford redress by annulling it or replacing it with a more lenient measure. Thus, if trade union representatives publish obscene caricatures or make lewd statements relating to the CEO or other members of management, that might well fall outside the scope of activities bona fide in furtherance of a trade dispute. [59] In other words, acts or omissions actuated by malice rather than a bona fide attempt to find a solution to a trade union issue would fall outside the scope of acceptable conduct and might well amount to misconduct. This must be a question of fact in each and every case. Unfortunately, this exercise was not undertaken by the Court of Appeal at all. [60] In our judgment, The Court of Appeal erred in focusing solely on the Union Leader’s obligations under his contract of employment or collective agreement without according any or sufficient consideration to his duties as President of NUFAM. It also failed to give any consideration as to whether the acts were in furtherance of trade union activity. In doing so, the Court of Appeal disregarded the statutory provisions of the Employment Act, IRA, and TUA. In our view, a contract of service cannot be used to contract out of the rights of employees to join, participate in or organize trade unions in contravention of the express prohibition contained in section 8 of the Employment Act 1955. [61] We accept that the contents of the Union Leader’s press statement relate wholly to problems faced by employees at the workplace and criticism of the management for failing to address the same. We do not think the Union Leader abused his office as union president for personal interest. His press statement was done 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 the circumstances, we are of the opinion that the Union Leader’s press statement amounted to participation in the lawful activities of a trade union and was not unreasonable, malicious, or knowingly or recklessly false. Accordingly, we agree with the High Court that the Union Leader’s conduct cannot be labelled as misconduct which warrants dismissal. Conclusion [62] Following from the above, we answer the questions of law as follows: Question 1 What is the extent of the protection afforded to an employee in respect of a charge of misconduct by an employer in relation to the employee’s acts carried out in his capacity as a Trade Union officer or member, having regard to the relevant legal principles including Section 4, 5 and 59 of the Industrial Relations Act 1967, Section 8 of the Employment Act 1955, Sections 21 and 22 of the Trade Union Act 1959 and the International Labour Organisation’s “Right to Organise and Collective Bargaining Convention, 1949”? Answer 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. Question 2 Whether the dismissal of a trade union leader for participating in trade union activities is an act of victimisation and unfair labour practice? Answer We do not answer Question 2 as it has been dealt with by the answer to Question 1. Question 3 Is a trade union officer speaking on behalf of the trade union obliged under the law to exhaust the trade dispute processes under Sections 18, 19 and 26 of the Industrial Relations Act 1967 before issuing a press statement on the nature of such trade dispute? If the said trade union leader has not exhausted the above process, is the issuance of the said press statement an act of misconduct justifying dismissal? Answer We answer the first part in the negative. We decline to answer the second part as it is set out in the provisions of the legislation and the Act itself. Signed NALLINI PATHMANATHAN Judge Federal Court of Malaysia Dated: 03rd October 2022 COUNSEL: For the Appellant: Ambiga Sreenevasan (Lim Wei Jit with her) SREENEVASAN Ground Floor, Block B Kompleks Pejabat Damansara Jalan Dungun, Damansara Heights 50490 KUALA LUMPUR For the Respondent: N.Sivabalah (Jamie Goh with him) SHEARN DELAMORE & CO 7th Floor, Wisma Hamzah Kwong Hing No. 1, Leboh Ampang City Centre 50100 KUALA LUMPUR