It started on 31st October 2003. Audra was terminated for having our third child, Allyson Jade Yew Lyn. Thats when we started this battle with them. It took some two years before the Minister of Human Resources decided to refer the case to the Industrial Court.
Today, in the Industrial Court no 19 presided by Chairwoman Datuk Paduka Badariah Hassan, Malaysia Airlines System Berhad (MAS) reiterated its right to terminate Audra based on her breaching of clause 27 (j) of the Collective Agreement that was valid at her time of service. Represented by Shearn Delamore, a big a** law firm who seem to thrive on cases like NSTP & 3, as well as 4 others V Rocky and Jeff separately (however, Shearn no longer represents NSTP as that case is now handled by another lawfirm) But Shearn still represents MAS. We are lucky indeed, having such competent lawyers for our opponent. (The Malay Mail, 6th Sept , page 10 carried the news'Ex-stewardess admits to breach of Contract')
If you have followed this blog, you might have known that I was asked by the Court Chairwoman to remove my blog due to the nature of it being severely critical of this case. I was further told that my blog is subjudiced to the case, and if I do so, run the risk of being charged in contempt of court and could be jailed! That was in early 2007.
After consulting a lawyer, I am told that since the case has already been mentioned, I am allowed to report the proceedings. It is no different from what you may have read in the Malay Mail. However I am not allowed to share my opinion. What I can tell you is that its true, if you look at the Collective Agreement in effect at the time in question, only 2 children were allowed. Also in effect at that time and also still in effect is the employment act, which does not restrict the number of children!
The big question then remains, is the CA within the act? In the hearing, Audra was cross examined by MAS's lawyer on whether she admits to breaching clause 27J of the collective agreement enforced in 2007. Yes, she did. What they did not ask was if this clause was well within the employment act, for that matter even constitutional.
MAS produced a witness, Mr Melvyn Rajoo (HR Manager for Discipline, previously HR Controller for Discipline, whose son is a Trainee Aircraft Maintenance Engineer for MAS works in the Engineering Dept) provided a witness statement that cites among others, the right for Malaysia Airlines to exercise discretion in terminating a stewardess who breaches clause 27J.
On being cross examined by Audra'a lawyer, Mr Melvin Rajoo admitted that the discretion that was used was entirely MAS's call, and in Audra's case, they used her letter that she wrote requesting for a transfer to ground position, admitting her pregnancy as 'Due Inquiry'. Audra's lawyer further asked Melvyn do define the word discretion but was objected by the opposing lawyer despite it being recorded in MAS's witness statement of reply. Without having defined 'discretion' and even so, with MAS admitting that the only 'due inquiry' that was extended to Audra was itself her letter of application for ground duties, there was no other points that was raised by Audra's counsel. In fact the introduction of an email from Idris Jala (Current CEO of MAS) was accepted by MAS, as evidence for Audra. The email contained Mr Idris's statement 'I hope you will accept the position of Customer Services Assistant' and 'Your previous experience as a cabin crew would be beneficial in helping you to carry out the duties'. This evidence was later accepted by the court, and prompted the Chairwoman to add that she finds no support from this evidence that it was referring to the issue of termination. She also pointed out the timeline, where Audra was terminated in Oct 2003 and the email dated Mar 2006. The issue of MAS writing to the Industrial Relations Department in January 2004 asking for the closure of Audra's complaint for wrongful termination was not brought up despite them reassuring the IR Dept that a job offer will be made to Audra.
Perhaps the most striking statement would have to be from Shearn's Lawyer 'Its late , its 4.10pm and a decision has to be made. I am expensive. Can you afford to pay my cost?', this was made when the email evidence was contested by Audra's lawyer that it was indeed an email to Idris Jala informing him to make a decision on Audra's reinstatement. The hearing adjourned at about 4.30pm with the chairwoman providing 5th October as the dateline for Claimant's written submission, and 5th November for company's written submission before replies from either parties on the 23rd of November.
Audra has now requested that her lawyer provide her a final draft of the submission as well as notes from the court, as well as her counsel before detailing her views.
I will share with you if the law permits.
Audra and I would like to thank those who showed up and supported her, namely, Farida (despite them not knowing each other), Zorro - for his undividing loyalty and opposing to anything against God's laws, Shanghai Stephen - who despite having an irritated throat still made it, Harris Ibrahim - a friend indeed for a friend in need, Rocky - despite missing our lunch , and not being able to hold off Zorro any more, he left before being cited for contempt, and Yushaimi/Nora/Mus(yes you too for following up on this long running case!)