The Making Of Another “Mayday For Justice”

Recently, the deputy rector of UiTM Raub was forced to issue his resignation letter for which the real reasons were unknown to us. The issue seems to be a controversial one as some claimed that his forced resignation has something to do with political intervention. It has become imperative for me to write this piece to extract the truth from the society which would otherwise be so fortified against the truth itself. I will try my absolute best to make this piece as brief as possible.

Dr. Che Hamdan is a senior lecturer in UiTM Raub and was appointed as deputy rector of the said university on 15th June 2020. Any person who knows this man will unanimously agree that he is a kind and dedicated person and is regarded as a father figure by his fellow students. He is a prominent figure in the faculty which he serves i.e., the Faculty of Administrative Science and Policy Studies (hereinafter referred to as FSPPP). His passion for education is undoubted and he subscribes to the idea that education shall not be politicised. Just after 6 months as deputy rector, this respectable man was forced by his superiors to resign from the position. It was claimed that he was forced into resignation because there was an allegation by some quarters that Dr. Hamdan was an agent of a political party.

It all started on 2nd December 2019 when a group of students went for an academic trip to DAP headquarter in Kuala Lumpur. The trip was not politically motivated nor to induce students to become a member of the respective political party. The objective of the trip was to give exposure to political diversity in Malaysia. In addition, on 18th November 2020, an alumnus of FSPPP by the name of Rahim who is also a member of DAP Kampung Tunku, organised a live session via Facebook and talked about UiTM and DAP in particular. The live session sparked controversy within the community for days. Dr. Hamdan was ordered by his superior to halt Rahim prior to the event. These two consecutive events resulted in Dr. Hamdan being accused as an agent of DAP though no cogent evidence presented thus far to support the accusation. Despite the lack of evidence, Dr. Hamdan was forced into resignation.

The main issue to be observed here is whether Dr. Hamdan tendered his resignation voluntarily or under compulsion, duress or threat. It is settled law that if an employee is forced to resign, the resignation will amount to dismissal. In Sheffield v Oxford Controls Co. Ltd, Justice Arnold laid down the principle pertaining to this issue. He stated that:

“We find the principle to be one of causation. In cases such as that we have just hypothesised, and those reported, the causation is the threat. It is the existence of the threat which causes the employee to be willing to sign, and to sign, a resignation letter or to be willing to give and to give the oral resignation. But where that willingness is brought about by other considerations and the actual causation of the resignation is no longer the threat which has been made but is the state of mind of the resigning employee, that he is willing and content to resign on the terms which he has negotiated and which are satisfactory to him, then we think there is no room for the principle to be derived from the decided cases.”

The principle was applied in the case of Aezerine Shah bin Abdullah v Fat Boys Records Sdn Bhd. The facts of the case are as follows: The claimant was an employee at the employer’s company. One day, he was called for a meeting with the CEO of the company and the meeting lasted for 4 hours. Six allegations were made against the claimant, namely, (a) late attendance to work, (b) late delivery of work, (c) lack of teamwork, (d) conducting freelance projects outside office hour, (e) using office facilities for freelance projects, and (f) receiving payments for freelance projects and poaching of company’s clients. According to the evidence adduced to the court, the claimant was threatened that if he did not resign, he will be served with three warning letters and subsequently be dismissed. Besides, the claimant claimed that he was not given a reasonable time to think about the matter. He requested to talk to someone about the matter and be given a few days to think about it deliberately but was rejected by the company. Thus, with no other options left beforehand, he entered into a negotiation for ex gratia payments and early release. The company contended that the negotiation was entered freely by the claimant and without any compulsion or pressure imposed upon him. The court rejected the company’s argument and held that the letter of resignation amount to dismissal.

From the above cases, we can infer that a resignation will amount to dismissal if the employee was forced to resign and if he was not given a reasonable time to think about the resignation and seek for advice on the matter. In addition, the onus is on the employee to prove that he was under compulsion, duress or threat when he made the decision to tender his resignation.

Based on all the facts we have pertaining to Dr. Hamdan’s case, we could say that he was forced to resign if: (1) he was threatened to be demoted, transferred or etc. for instance, if he did not resign from his position and (2) he was not given a reasonable time to seek for advice on the matter. We cannot give a conclusive answer as to whether his resignation amount to dismissal or otherwise as the material facts were not disclosed. Nevertheless, we can only say that if both requirements are not met, Dr. Hamdan resignation would amount to a dismissal. If that is so the case, it will no longer be an issue of resignation but instead an issue of dismissal.

Let us presume that Dr. Hamdan successfully prove that his resignation amount to dismissal. The next issue to be observed is whether Dr. Hamdan can challenge the dismissal on the ground that it was made in bad faith (mala fide).

A relevant authority to be referred to is the case of Universiti Teknikal Malaysia Melaka lwn Prof Madya Md Noah bin Jamal. It is a case where the respondent was an associate professor on a contract basis for a period of two years and had signed the agreement from 19th November 2007 until 18th November 2009. On 15th December 2007, he was appointed as the Deputy Dean (Academic) of the Electrical Engineering Faculty from 16th November 2007 until 18th November 2009. On 7th October 2008, the respondent received a letter of termination of service as the Deputy Dean. The court held that the appointment of a Dean or Deputy Dean was different from the appointment of a university employee. Clause 2 of the Constitution of Universiti Teknikal Malaysia made a clear demarcation on the meaning of the words “guru” as professor, associate professor, lecturer, etc. and “pegawai” as Chancellor, Vice chancellor, Dean etc. The appointment of the respondent as Deputy Dean falls within the meaning of word “pegawai” and was made by the Vice Chancellor administratively under the jurisdiction vested upon him by virtue of Clause 22(4) of its constitution whereas the appointment as associate professor fall within the meaning of the word “guru” and was made by the university by virtue of Clause 14 of its Constitution. There was no contract signed between the respondent and the university or the Vice Chancellor regarding his position as Deputy Dean. Thus, the appointment was not a contractual appointment as it was with the appointment as an associate professor. Hence, the termination from administrative position need not comply with the termination procedure of a university employee by way of contract. Besides, it was stipulated in the letter of appointment that the appointment made under Clause 22(4) could be terminated at any time by the university, and the university or Vice Chancellor was not required to give any reason for the termination.

In UiTM Act 1973, Section 4 provides that the university has the power to (f) enter into contracts and to appoint such staff as may be required for the purposes of the Universiti and (g) appoint or promote staff of the University. Section 2 defines staff as (a) any officer or servant of the University, (b) any person appointed to be a lecturer by the Board, and includes a senior professor, professor, associate professor, assistant professor, reader, senior lecturer, assistant lecturer, and tutor, or (c) any person employed by the Board. Section 22A(1) reads, the University shall have such other principal officers who shall be appointed by the Board on such terms and conditions of service as may be approved by the Board. From plain reading of the statute, we can infer that the position of deputy rector is known as principal officer as according to the Act and falls into the definition of staff. In addition, Section 32 reads, all members of the Board, the Vice-Chancellor, any member of the staff or agent of the University, while discharging their duties or carrying out their functions or exercising their powers shall be deemed to be public servants within the meaning of the Penal Code. Subsequently, Section 34A states that no action or suit shall be instituted against the persons mentioned in para (a) to (h) of the proviso for an act or omission done in good faith.

Now, the case of Universiti Teknikal Malaysia Melaka lwn Prof Madya Md Noah bin Jamal must be distinguished from our present situation. This is because the Constitution of Universiti Teknikal Malaysia Melaka clearly states the difference between an academician and an officer whereas UiTM Act does not contain such demarcation. Also, the Constitution of Universiti Teknikal Malaysia Melaka clearly demarcates the way of appointing an academician and an officer whereas in UiTM act, all staff are appointed by the University except for the positions of Chancellor (by YdPA), Pro Chancellor (by Chancellor), Vice Chancellor (by Minister) and Deputy Vice Chancellor (by Minister). Hence, in the case of UiTM all persons within the definition of the word staff are public servants (Section 32 of the Act).

Next, we are going to look at Article 135 of the Constitution pertaining the restriction on dismissal and reduction of rank. This proviso contains two limbs namely the procedural safeguard and right to a hearing. In our case, Dr Hamdan has the rights under Article 135(1) and (2) and may contend that he was not given the right to a hearing and was dismissed in bad faith. Only at this juncture can he discuss the alleged reasons as mala fide i.e., academic trip to DAP headquarter and failure to halt Rahim’s live session, which I find no misconduct on his part therein. As a political science lecturer, Dr. Hamdan did no wrong with approving the trip as it was part of the academic syllabus for the students to organise an academic trip to a political party headquarter. If the trip was considered as misconduct, we ought to say that there is no freedom of education in Malaysia. This country is of no difference than an autocratic state where leaders/superiors have absolute and unfettered power to do whatever they wish. Apart from that, failure to halt Rahim’s live session shall never be the reason for him to resign because Rahim at that material time was no longer a student of FSPPP. He had completed his studies at UiTM Raub and has the right to participate in any political party that he wants. Article 10 of the Constitution spells out the right to association and freedom of speech and Dr. Hamdan has no right in law to prevent Rahim from practicing his rights.

On 19th January, a group of Dr. Hamdan’s former students wrote an open letter to UiTM demanding for the real reasons to be disclosed. To date, there are no official remarks made by UiTM on the issue. The only material document that we have is only a statement letter by UiTM Administrative Science and Policy Studies Alumni Association of Malaysia (ASPAA) which was published a day after the open letter stating that the open letter was made on individual capacity and did not represent ASPAA as an alumni association as a whole.

Artikel ini adalah tulisan saudara Muhammad Aiman Haziq dan tidak semestinya mencerminkan pandangan pihak Solidaritas.