Seberang Perai Council Ordered To Compensate Two Staff For Unlawful Dismissal

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The Federal Court in Putrajaya has ordered the Seberang Perai City Council (MBSP) to pay compensation to two former employees for unlawful dismissal
In the first case, the High Court has been instructed to assess the damages for 58-year-old Muziadi Mukhtar, who was a security guard at the council
Meanwhile, former engineer Mohd Sobri Che Hassan was awarded a total of six years' wages - from the day he was sacked in December 2013 until the apex court's ruling last month
MBSP was also ordered to pay costs of RM50,000 in each case

According to the written judgments sighted by Malaysiakini, both the unanimous decisions were made on Oct 20
In Muziadi's case, the five-member panel led by Chief Judge of Malaya Azahar Mohamed ruled that the city council was wrong in denying him the right to be heard following a disciplinary action initiated against him in 2014 after learning that he was convicted for a crime in 2010
Other members were Justices Alizatul Khair Osman Khairuddin, Mohd Zawawi Salleh, Idrus Harun and Nallini Pathmanathan
The Federal Court also ruled that Rule 25(2) of 1995 Regulations, which MBSP relied on, was ultra vires (beyond the powers) of the Local Government Act 1976
This is because Section 16(4) of the Local Government Act accords reasonable opportunity to be heard in disciplinary action against the staff but is silent on whether similar rights will be granted to those convicted in a criminal court
However, Rule 25(2) states that the right to be heard is not granted to those found guilty in criminal court
The 1995 Regulations is the disciplinary regulation of MBSP and approved by the Penang state government
On this, Federal Court ruled that "the 1995 Regulations, a subsidiary regulation of the Local Government Act, cannot be broader than its parent act"
"Any subsidiary legislation that runs counter to an act of Parliament would be rendered void," ruled the presiding panel according to the 53-page written judgment
MBSP was represented by Cyrus Das, M Murgan and Karin Lim, while lawyer N Selvarani acted for Muziadi
In May 2010, Muziadi was charged in court and pleaded guilty to unlawful possession of property under the Minor Offences Act 1995. He was fined RM600
Four years later, MBSP learned about the conviction after receiving an anonymous letter. He was dismissed on Sept 4, 2015
Muziadi then filed a judicial review in the High Court in Penang to quash the dismissal. He named the disciplinary authority of MBSP and MBSP as respondents
In April 2017, the High Court ruled in his favour and awarded compensation of RM15,000
Unhappy with the decision, MBSP filed for an appeal but was thrown out by the Court of Appeal in December 2018. MBSP then appealed to the apex court
Engineer challenged the transfer and lost In Sobri's case, the five-member panel of Federal Court led by Justice Ahmad Maarop ruled that MBSP erred in the process of his dismissal in December 2013
Soon after he was hired as an engineer, Sobri was transferred to Health Service Department in July 2002. He had challenged the transfer but his bid was thrown out in High Court. He appealed and lost again
On Sept 5, 2012, the then Penaga state assemblyperson from BN, late Azhar Ibrahim, brought up Sobri's transfer in the Penang State Legislative Assembly sitting
Five months later, Sobri was slapped with disciplinary action for allegedly being late for work. He was served a warning and deferment of his annual salary increment for 12 months
He mounted a lawsuit against MBSP over the disciplinary punishment. He lost the bid
In April 2013, Sobri faced another disciplinary action for using the influence of a lawmaker in his cause which was prohibited under Regulation 4(2)(h) of 1995 Regulations
Regulation 4(2)(h) of the disciplinary regulation bars the employee of MBSP to bring any form of influence and outside pressure to support or make demands with regard to the public service
Sobri denied the accusation and said he never met the lawmaker himself. He also pointed out there was no need for him to seek help from a lawmaker as he had mounted a legal suit
Sobri also demanded MBSP to hold an inquiry to probe the matter
After his dismissal, he filed a judicial review in High Court, seeking certiorari to quash his sacking
The High Court ruled in the favour of MBSP while the Court of Appeal in Putrajaya overturned the decision
The Federal Court upheld the decision of the appellate court, pointing out that Sobri was not given a reasonable opportunity of being heard in the disciplinary action against him that led to his dismissal
This is particularly so when he was unaware that the disciplinary documents presented by the disciplinary authority contained details of his previous disciplinary conviction
"....the first respondent (disciplinary authority of MBSP) did not provide such information to the applicant. Neither was the applicant (Sobri) informed that such information may be used against him in meting out the punishment," ruled the court
The apex court further ruled that there was "procedural impropriety" in the dismissal of Sobri
"The process undertaken by the first respondent had infringed the rule of natural justice," said the court
It also ruled that Sobri cannot be reinstated and therefore ordered MBSP to pay him compensation
The court made this ruling based on a similar case in Jempol District Council vs Mohd Ahmad where the apex court ruled no reinstatement for the employee
Other presiding judges were Justices Zaharah Ibrahim, Azahar Mohamed, Alizatul Khair Osman Khairuddin and Rohana Yusuf
Cyrus and Murgan acted for MBSP, while lawyer N Vijaya represented Sobri
Speaking to Malaysiakini, Murgan said the court made a new ruling that will not only impact all the local authorities, but also affect all the statutory bodies and public servants
He added that a wrongful dismissal suit that was heard in an Industrial Court only allows the employee a maximum of two years' wages as compensation.  - Mkini

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