Freescale Semiconductor Malaysia SDN BHD (Appellant) v. Edwin Michael Jalleh (First Respondent), and Mahkamah Perusahaan Malaysia

The First Respondent Edwin Michael Jalleh was a senior manufacturing supervisor at the Appellant, and he deliberately touched the buttocks of Intan Nurulain, while she was working at the saw machine. Jalleh was a supervisor on the floor. The administrative inquiry found the allegation to be proved, and he was issued a letter of dismissal from the Appellant. The First Respondent filed a claim under Section 20 of the Industrial Relations Act 1967 that his services had been terminated without just cause or excuse. He sought, among other things, reinstatement. The Industrial Court ordered that the First Respondent be accorded with backwages and compensation in lieu reinstatement, because the punishment of dismissal was too harsh. The High Court dismissed the application by the Appellant for judicial review to quash the award of the Industrial Court. The Court of Appeal, in this case, stated that the germane consideration in industrial relations is that the remedy imposed is warranted and not disproportionate to the misconduct committed, and that consideration must be taken not only of matters concerning the interests of the party who committed the misconduct, but also the whole of the circumstances in the interest of maintenance of good industrial relations in the workplace. The Court of Appeal provided that the Industrial Court failed to take into account that the offense of the sexual misconduct was not committed by a peer, but rather by a superior, which increased the magnitude of the misconduct. Further, an award to the First Respondent (i.e., the person who committed the sexual harassment) in lieu of his reinstatement imposes an unfair punishment upon the Appellant (i.e., the employer), when the misconduct is not the act of or contributed by the employer, but solely a personal act of the employee. As such, the Court of Appeal set aside the order of the High Court and the award of the Industrial Court.




Court of Appeal Malaysia at Putrajaya

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