Industrial Court praises pro bono lawyers as Pos Malaysia wins dismissal claim

KUALA LUMPUR: The Industrial Court has praised two lawyers for their pro bono representation of a vulnerable claimant in an employment dispute, even as it dismissed her constructive dismissal claim against Pos Malaysia Bhd.

Chairman Augustine Anthony commended the efforts of lawyers Edward Andrew Saw and Jerry Low for returning to act for Nurafiera Rafee after initially discharging themselves from the case due to difficulties obtaining instructions from their client.

“Pro bono lawyers like these two, with their generosity and selfless dedication to the legal profession in the pursuit of justice, are not left unnoticed by this court, which lauds their contributions,” he said in a recent 35-page award.

Anthony said their conduct reinforced the legal profession’s commitment to access to justice, particularly for disadvantaged litigants.

He noted that the case involved an unusual solicitor-client relationship, as the lawyers withdrew midway through the proceedings after trial dates were fixed.

They resumed acting on a pro bono basis after learning of Nurafiera’s personal difficulties and medical condition.

“Saw and Low could not win the case for the claimant, despite their articulate and passionate advocacy, but they have certainly earned the admiration of this court,” Anthony said.

Nurafiera, a Pos Malaysia clerk since 2013, claimed she was constructively dismissed after being transferred from the Taman Dagang post office to the general post office in Dayabumi while on medical leave following a workplace injury.

She argued that the transfer, coupled with the company’s alleged failure to adequately address her objections, amounted to a breach of her employment contract, entitling her to treat herself as constructively dismissed.

However, Anthony found that the transfer was part of a broader operational exercise involving seven other employees and had been planned since December 2022, before Nurafiera sustained her injury.

“The transfer fell within the employer’s managerial prerogative under both the employment contract and collective agreement,” he said.

He also noted that Pos Malaysia postponed the transfer after being informed of her medical condition and assured her that her appeal would be considered.

Anthony held that Nurafiera acted prematurely by claiming constructive dismissal on March 30, 2023, six days after receiving the company’s assurance letter.

“The employer had not breached any fundamental term of the contract of employment, nor demonstrated an intention not to be bound by it,” he said.

He concluded that Nurafiera failed to prove she was dismissed and found that she had instead abandoned her employment.

Lawyer Sharulnizam Rani appeared for Pos Malaysia.