INSUFFICIENT INVESTIGATION LEAD TO UNFAIR DISMISSAL
OOI LEE HONG V MALAYSIA AIRLINES BERHAD
(AWARD NO: 1193 OF 2020)
- The Claimant was assigned to operate flights with First Officer which is the key witness of this case despite the fact that COW 2 would not able to complete the fourth sector without exceeding the permissible Flying Duty Period, he was called by the Crew Tracking Centre to operate the flight.
- The Claimant services with the Company was later terminated via Letter of Punishment Order on the ground of his failure to inform the Company in regards to the exceeding of flying duty period for COW2 which caused the unnecessary delay of flight which interrupted the operations and exposed the Company to adverse publicity risk as well as financial losses as a result from the 15 minutes delay.
- The Claimant claimed that the dismissal was wrongful, without just cause or excuse and that it was unfair to fault him solely for the delay in reporting about COW 2 situation.
- The Claimant had an unblemished record of service and was selected after a lengthy and diligent selection process and upon serving the predecessor company MAS for over 20 years as a pilot. The punishment of dismissal without even contemplating any other form of reprimand was not proportionate to the alleged misconduct.
- Whether the Claimant was guilty of the misconduct. If yes, whether the misconduct warranted a dismissal.
COURT FINDING AND REASONING
- In determining whether there was misconduct by the Claimant the Court looked to see if the Claimant had deliberately delayed informing COW2’s situation to the Company. The Court finds that it was not done on purpose.
- Although COW2 exceeding his FDP was crucial in any operations, in the circumstances of this case it was not something that would put the Company in dire straits. Furthermore, the lateness in reporting did not cause severe damage to the Company and its operation as it was only a 15 minutes delay hence the Court finds that there was no misconduct on the part of the Claimant.
- The Court paid close attention to the demeanour of the key-witness in this case as during the examination, there were instances where he appeared to be evasive and reluctantly answered the questions posed to him.
- The company in this case was hasty in coming to the conclusion that there was misconduct without carrying out sufficient investigation into the incident.