- 一家公司的工人在两个月内组织了三个纠察队(picketing ) 。Picketing是一群员工在公司门口向进出的公众宣传劳资纠纷或通知罢工，或促顾客拒绝与雇主交易，或表达工会代表雇员的愿望。 通常伴有手持标语牌的巡逻行动。
- 此个案的员工进行了三次的Picketing。第一次是针对管理层引入的一项新规定，即员工公司场所禁止吸烟。 他们被允许在休息时间时，在公司范围外吸烟。参与此行动的10 名员工都收到公司的show cause letter, 随后被解雇。 他们将此解雇事件带上工业法庭。
- 工业法庭裁定第一次的Picketing是非法的，因为员工吸烟的问题不在他们的雇佣条款范围。 而且雇主有权禁止他们在公司场所吸烟。
- 法庭也指出，这群员工所进行的方式是粗暴的、以及带有恐吓的。 据公司目击者称，当时的情况非常混乱，造成其他员工的恐惧。有的员工甚至不敢经过公司前门的洗手间。法庭认为这群员工的行为完全违反了该法案第 40 条规定的标准，因此法庭裁定他们是被公司合理的解雇。
Picketing Over Matter which was not Subject of a Trade Dispute
- In 2012, workers of a company organised three pickets within a two month period. The first picket was over a new rule introduced unilaterally by the management that smoking was strictly prohibited throughout the Company premises. This rule came after a spate of fires which it was believed were a result of smoking in the designated smoking areas. Workers were, however, permitted to smoke during their rest periods but only outside the Company compound.
- Ten of the workers involved in the pickets were given show cause letters. Subsequently, after a domestic inquiry found them guilty of misconduct, they were dismissed. They challenged their dismissals and their claims reached the Industrial Court.
- The Court determined that the first picket was illegal as a no-smoking rule cannot be a cause for a trade dispute. Smoking by employees is not a term and condition of employment. Furthermore, employers have the right to decide how their premises should be used.
- The second and third pickets were held as a result of a breakdown in collective bargaining which occurred at approximately the same time as the new smoking rule was introduced.
- However, they were conducted after the dispute between the trade union and the company had been referred by the Minister of Human Resources to the Industrial Court for adjudication. The workers were well aware that the dispute had been referred to the Court as the workers had been informed by the Company of this matter.
- To answer the question whether the picketing had been protected by the law, the Court said, “… in order to picket, the claimants must first cross the threshold requirement – was there a trade dispute? Clearly there was not because:
- (i) the designation of a smoking zone is entirely the prerogative of the Company and not a term and condition of employment that is open to dispute; and
- (ii) If at all the smoking zone was a term and condition of employment, it would have been part of the CA. At the material time, there was an existing referral of the CA to the Industrial Court on 22 July 2012 and therefore, a picket could not be carried out on 27 August 2012 to 30 August 2012 and 3 September 2012 to 7th September 2012 per s. 40(2A).”
- Even though the Court had decided that the picketing was illegal, it decided to examine the behaviour of the picketing workers during the picket.
- The Court noted, “The manner in which they carried out the August and September pickets was rowdy, intimidating, obstructed access and the claimants displayed their contempt for the Company’s management which was evident from the level of noise and the way in which they converged upon the said persons when she came and left the premises.
- The picket obstructed traffic; the situation was chaotic and created fear according to the Company’s witnesses; and workers not involved in the picket were afraid to go to the bathrooms or the canteen which were situated close to the front entrance where the picket was being held.
- The Court said, “…there can be no hesitation in finding that the claimants’ conduct was entirely in violation of the standards provided in s. 40 of the Act.”
- The Industrial Court found that the workers who had participated in the illegal picket had committed a serious act of misconduct and upheld their dismissal.
- Employee Misconduct CLJ PUBLICATION
- Mohammad Faris Basri & Ors v. Ansell NP Sdn Bhd  3 ILR 546
INDUSTRIAL RELATIONS ACT 1967
40. (1) Without prejudice to section 39, it shall be unlawful for one or more persons acting on his or their behalf or on behalf of a trade union or of an employer in furtherance of a trade dispute to attend at
or near any place:
Provided that it shall not be unlawful for one or more workmen to attend at or near the place where the workman works and where a trade dispute involving such workman exists only for the purpose of peacefully—
(i) obtaining or communicating information; or
(ii) persuading or inducing any workman to work or abstain from working, and subject to such attendance being not in such numbers or otherwise in such manner as to be calculated—
(a) to intimidate any person;
(b) to obstruct the approach thereto or egress therefrom; or
(c) to lead to a breach of the peace
*We have more than 15 years of experience in the legal profession. We handle matters such as commercial disputes, civil litigation, debt recovery, probate & letter of administration, will, divorce, children custody, maintenance/alimony, adoption, distribution of matrimonial assets, drafting commercial agreement, drafting sale and purchase agreement, process loan documentations, legal consultation, legal advisory, miscellaneous legal works.
*Wilson Kuek是“法律与你同行 Law & Justice”面子书群组的创办人。“法律与你同行”是马来西亚最大的法律平台。我们每天为无数的平民百姓免费解除各类的法律困扰。
*加入 我们的“法律与你同行”FB 群组: http://bit.ly/fblawnjustice
*Like 我们的“法律与你同行” FB Page: http://bit.ly/lawnjusticefbpage
*Kuek, Ong & Associates. Advocates & Solicitors. No.86-1, Jalan Mahagoni 1, Bandar Botanic, 41200 Klang, Selangor Darul Ehsan. Klang Lawyer. 巴生(吧生)律师楼。#Kuek, Ong & Associates #Kuek Ong & Associates #Kuek Ong Associates #郭汪律师事务所 #郭汪律师楼
#Chinese Lawyer in Malaysia #Malaysia Lawyer #Klang Lawyer #KL Lawyer #divorce lawyer #马来西亚华人律师 #懂华文的律师 #懂华语的律师 #巴生律师 #吧生律师 #KL律师 #吉隆坡律师 #民事诉讼律师 #打官司的律师 #打离婚案的律师 #离婚律师