Pemecatan terancang, bekas pensyarah Unisel menang rayuan

Mahkamah Rayuan has ruled that the ongoing actions of YS Education Berhad, Unisel's controlling company, constitute a fundamental breach of the service contract. In a majority decision of 2-1, the court sided with the former lecturer at Universiti Selangor (Unisel), Siti Asmahan Ali, who had been dismissed as part of a downward grade and salary reduction following a private WhatsApp message in a non-official staff group.

The majority decision stated that Siti Asmahan fulfilled the statutory requirement to prove her dismissal was planned. While two judges agreed with this ruling, one dissented. The court ignored judgments from the Company Court and the High Court, declaring Siti Asmahan was dismissed as planned without just cause or reason. The case was sent back to the Company Court to determine the amount of compensation she should receive, including back pay and severance.

So, the court has resolved the liability issue, leaving only the assessment of remedies to be determined. Siti Asmahan joined Unisel in 2001 as a lecturer in the Faculty of Industrial Management and was promoted to senior lecturer in 2007. After serving almost 20 years, she faced an internal inquiry in late 2020 following a private message in a staff WhatsApp group.

The investigating panel found evidence against her, leading to her grade reduction from senior lecturer to lecturer (Gred DS45) and salary cut. She challenged this decision, claiming the disciplinary process was unfair and that the university no longer intended to uphold the terms of her employment contract. Among other things, she accused five witnesses of testifying against her without her presence, and she was not given a meaningful opportunity to present her case in the internal appeal.

She also accused the individual who imposed the dismissal of being involved in the decision-making. Therefore, she considered herself dismissed as planned and filed a representation under Section 20 of the Companies Act 1967. The court allowed her appeal, stating that management actions must be assessed objectively and cumulatively, rather than investigating each incident separately.

The court found that the disciplinary panel formed part of the management and had the authority to make decisions on behalf of the company. Although the university had the right to demote her, the punishment should be commensurate. The punishment inflicted was severe, considering it affected her academic position while also leading to a salary reduction.

The majority decision also found that she was repeatedly silenced during the disciplinary process, and the internal appeal did not give her a meaningful opportunity to be heard. The panel held that the company's failure to consider the cumulative effect of management's actions in determining whether a fundamental breach had occurred was a mistake, as was the High Court's mistake.

The company was also ordered to pay RM50,000 in costs. Siti Asmahan was represented by Simrenjeet Singh and Nicholas Ng, while Nor Aziah Harun, Nurfarah Athirah Faizal Tan, and Arif Kamil Abdul Rahman Kamil acted for the company.