We, the 53 undersigned organisations and trade union are shocked to hear about the wrongful termination of Muhammad Zulfadlee Thye Bin Abdullah, the President of the Infineon Technologies Malaysia Workers Union (Kesatuan Pekerja Pekerja Infineon Technologies (M) Sdn Bhd) at INFINEON in Malacca, which is said to be the largest assembly of INFINEON with a workforce of about 8000 people. Zulfadlee, an employee since 1998, has been the President of the Union since 2005.
INFINEON is a German Company that produces, amongst others, electronic and auto components, which are said to be used by major Brands including Apple, BOSCH, Philips, Microsoft, Hewlette Packard, Dell and Continental.
On 13/12/2016, Zulfadlee was terminated on the grounds that he ‘committed the act of malingering’, with reference to a sick leave obtained on 18/10/2016 from a doctor, Dr Aw Cheng Yew of Kllnlk Melaka, which is a panel clinic of the Employer. The basis of the allegation seems to be because he was present at an activity of the Selangor Division of the Malaysian Trade Union Congress(MTUC) in Putrajaya on the same date when he was on sick leave. As such, one may assume that maybe the charge was simply pretending to be sick (or faking illness) for the purpose of avoiding work or duty.
It must be stated that the reason for termination used was not an employment misconduct stated in INFINEON Technologies (Malaysia) Sdn. Bhd’s document entitled Policy for Misconduct and Disciplinary.
Further, the word ‘malingering’ is not a commonly used word, and as such many are unaware of the meaning of that word. To compound matters, in this case, the word ‘malingering’ allegedly was never even clearly explained to Zulfadlee, whose mother tongue is the Malay language. When such English words are used in a charges levied against a worker, and then not explained clearly, it will have a tendency to be confusing and may result in injustice.
In law, Zulfadlee was entitled to 22 days of paid sick leave every year, and it must be pointed out that he was examined by a qualified doctor who concluded that he was entitled to sick leave, and a medical certificate was signed and issued by the said doctor. A sick leave is given only when the doctor, after examining decides a worker is not medically fit to perform his/her duties at work.
There was no question of Zulfadlee lying or pretending to be sick, for on the subsequent day he went to see a specialist doctor, who allegedly discovered that he had a stone in his bladder and he was then given further sick leave for 3 days on 19/10/2016, 20/10/2016 and 21/10/2016. Despite being on sick leave, Zulfadlee did come to the office for a few hours to do some urgent work on 2 of these days but he was not charged for committing the ‘act of malingering’ for these days.
Being on a sick leave does not mean that one is to be confined at home and bed rest, and cannot do any other things including also attending some union meeting or activity – a sick leave only means that he is not medically fit for work on the said day, and in law he becomes entitled to paid sick leave.
On 18/10/2016, Zulfadlee said that he had no plans whatsoever to go to the Putrajaya union activity with his union members who planned to go. It was only after he had obtained medical leave whilst he was sending off the union members heading to Putrajaya, that he was convinced by his fellow union members and suddenly decided to follow them in the bus.
Now, even if an Employer disputes the Medical Certificate issued by the doctor, then the Employer should reasonably have taken action against the doctor and/or the clinic – not with the employee. It must be pointed out that generally a panel clinic of the employer, are less likely to simply issue Medical Certificates to employees unless the doctor is convinced that the said worker is entitled to sick leave. In this case, the Employer really had no reasonable basis to even suggest that Zulfadlee was ‘malingering’ or lied to obtain the sick leave. In such health matters, the Employer is certainly not competent – only the qualified doctor is.
We do not believe that any failings of a doctor, if there even is, should ever be blamed on a worker, and certainly not be used as justification for termination.
Further, attending or participating in a union activity cannot and should never be an employment misconduct and/or a breach of the employment contract.
ANTI-UNION ACTION & DISCRIMINATORY ACTION AGAINST UNION PRESIDENT
As such, we are of the opinion that the termination of the Union President may really not be because of an ‘act of malingering’ by an employee, but simply a union busting action targeting the Union President and the Union.
In INFINEON’s letter dated 6/1/2017, rejecting Zulfadlee’s appeal against the termination it was stated, amongst others, ‘…The basis of our decision was premised on the fact that the Management could not condone nor mitigate punishments for a serious act of misconduct committed by a Union President leading the employees of Kesatuan Pekerja – Pekerja lnfineon Technologies Malaysia itwu,’ This letter was signed by Lee Cheong Chee, the President & Managing Director of lnfineon Technologies Melaka.
The said letter, also did state, ‘…your illustrious career and contributions to the Company has been well acknowledged through your progress during your tenure. While that may ordinarily be a mitigating factor in considering any appeal, the Management has decided that the your act of malingering is deemed to be unacceptable and is aggravated in view of you being the Union President at the point the act of misconduct was committed…’
Besides Zulfadlee, 6 other members of the Executive Committee of the Union, including the Vice President and the Secretary, were also targeted and subjected to disciplinary action – and some of this had ended with a stern warning, whilst only the Union President was terminated.
Considering the fact that out of the 40 over employees that participated in the Union program on 18/10/2016, and only the President and 6 of the Union leaders have been subjected to disciplinary action, it certainly looks that INFINEON maybe discriminating against employees who are leaders of the Union, and maybe reasonably said to be an act of ‘union busting’.
The timing of these disciplinary actions and the termination of the Union President, when the Union and INFINEON is starting negotiations concerning the next Collective Bargaining Agreement, whereby the first meeting is scheduled for 23/1/2017 is most disturbing. Members of the Union will most likely be prejudiced by this.
It looks like the Employer’s actions in this case was maybe to instill fear in the Union, its members and other employees, which may affect the effectiveness of the trade union. These actions of the Employer would impact on the duty and obligation of Unions to fight for better rights and working conditions, highlight future wrongdoings, and fight against violation of the worker rights. It is failure to recognize and respect the freedom of association.
The failure of this Union and/or its members to openly protest the wrongful dismissal of the Union President indicates that the Employer’s strategy to create a docile and compliant union maybe working. It may also seriously affect the upcoming Collective Bargaining Agreement to the detriment of employees and Union members.
OBLIGATION TO UPHOLD WORKER AND UNION RIGHTS, AND FREEDOM OF ASSOCIATION
INFINEON Technologies (Malaysia) Sdn. Bhd.,a subsidiary of INFINEON, a German company, in this case seem to have acted contrary to the INFINEON’s own policy and Code of Conduct, Organisation for Economic Co-operation and Development (OECD) Guidelines, Electronic Industry Citizenship Coalition Code of Conduct, UN standards and principles; and other relevant standards and good practices.
Brands and corporations that do have INFINEON in their supply chain also have the obligation to ensure that justice be done, and that Codes of Conducts or Policies not be violated by reason of these action/s of INFINEON, vide it’s Malaysian subsidiary, INFINEON Technologies (Malaysia) Sdn. Bhd, including the discrimination and the wrongful termination of the Union leader.
Justice demands that INFINEON Technologies (Malaysia) Sdn. Bhd should immediately reinstate Zulfadlee without electing to simply just wait for the long drawn out court process in Malaysia, that could take even 5 – 9 years before court may award victory to a wrongfully terminated worker. As such, unless INFINEON immediately reinstates Zulfadlee, an employee of INFINEON for 18 years, great injustice would be done to this worker who has wrongfully been deprived of his employment and income that is so needed for him and his family to survive.
Unjust Malaysian laws at present, states that if the worker cannot be reinstated, he will be awarded compensation in lieu of reinstatement for just a maximum of 24 months, when previously this compensation would have been payment of all income worker would have earned from date of wrong dismissal until the date of judgment(or reinstatement). The new amended limit is not anymore a deterrent for employers seeking to wrongfully get rid of employees, especially worker leaders.
Further, in the case of a Union leader, the chances of getting employment with any other employer, especially in the same sector, is also most difficult compared to other workers. Termination of strong Union leaders is grossly unjust to the Union and its members. Without immediate reinstatement, great injustice will be done.
Call for the immediate reinstatement of Zulfadlee Thye Bin Abdullah, the President INFINEON Technologies Workers Union;
Call for the immediate withdrawal of disciplinary action/s against other Union leaders and/or members, and/or for the revocation of any punishment that has already been handed out;
Call on INFINEON and its subsidiary, INFINEON Technologies (Malaysia) Sdn. Bhd, to respect and promote worker and trade union rights, and cease discrimination against Union leaders, and also cease union busting activities.
Call on Apple, BOSCH, Philips and other companies that has INFINEON in its supply chain to immediately ensure that INFINEON respect the Freedom of Association of Workers, Worker and Trade Union Rights;
Call on Germany to ensure that INFINEON comply with the OECD Guidelines, United Nations and International Labour Organisation (ILO) standards, principles and best practices, and other similar obligations to ensure that human rights and worker rights are respected, protected and promoted;
Call on INFINEON and INFINEON Technologies Melaka to respect and promote human rights, including worker and trade union rights.
Syed Shahir bin Syed Mohamud
Mohd Roszeli bin Majid
For and on behalf of the 53 organisations, trade unions and groups listed below
Asociación de Trabajadoras del Hogar a Domicilio y de Maquila–ATRAHDOM,Guatemala C.A.
Association of Human Rights Defenders and Promoters- HRDP
Building and Wood Worker’s International (BWI) Asia Pacific
CEREAL Centro De Reflexión Y Acción Laboral (CEREAL), México
Center for Alliance of Labor and Human Rights (CENTRAL) – Cambodia
Christian Development Alternative (CDA), Bangladesh
Clean Clothes Campaign International Office(CCC)
Club Employees Union Peninsular Malaysia
CWI (Committe For Workers International) Malaysia
Electrical Industry Workers’ Union(EIWU)
Electronics Industry Employees Union Southern Region Peninsular Malaysia(EIEUSR)
Electronic Industry Employees Union Northern Region Peninsular Malaysia
IndustriALL Global Union
Institute for Development of Alternative Living (IDEAL)
Kesatuan Eksekutif AIROD
Kesatuan Pekerja-Pekerja Mitsui Copper Foil(MCFEU)
Kesatuan Pekerja-pekerja Perodua EngineManufacturing Sdn. Bhd
Kesatuan Pekerja-Pekerja Perusahaan Otomobil Nasional Sdn Bhd (KPP Proton)
MADPET [Malaysians Against Death Penalty and Torture]
Malaysian Trade Union Congress(MTUC)
Movimentu Kamponezes Timor Leste-Mokatil
National Union of Bank Employees (NUBE)
National Union Employees in Companies Manufacturing Rubber Products (NUECMRP)
National Union of Flight Attendants Malaysia (NUFAM)
National Union of Transport Equipment & Allied Industries Workers (NUTEAIW)
North South Initiative (NSI)
Paper Products Manufacturing Employees’ Union of Malaysia (PPMEU)
Parti Rakyat Malaysia(PRM)
Pertubuhan Angkatan Bahaman, Temerloh, Pahang, Malaysia
Persatuan Komuniti Prihation Selangor & KL
Persatuan Sahabat Wanita Selangor(PSWS)
PINAY (The Filipino Women’s Organization in Quebec), Canada
Progressive Voice, Myanmar
PROHAM -Persatuan Promosi Hak Asasi Manusia
Sawit Watch, Indonesia
Solidarity of Cavite Workers (SCW), Philippines
SUARAM(Suara Rakyat Malaysia)
Tenaga Nasional Junior Officers Union (TNBJOU)
WH4C(Workers Hub For Change)
Workers Assistance Center, Inc., Philippines
Yayasan LINTAS NUSA, Batam-Indonesia