“To see a wrong and not to expose it, is to become a silent partner to its continuance.” – Dr. John Raymond Baker.
It is based on this premise that the Plaintiff, Syed Omar bin Syed Agil, sought protection and remedies as a whistleblower under the Whistleblower Protection Act 2010 (“the Act”) for exposing financial mismanagement and irregularities of the Institut Profesional Baitulmal (“the Defendant”) to the Police and the Malaysia Anti-Corruption Commission (MACC).
The Plaintiff was appointed as the Chief Executive Officer of the Defendant, an institute whose majority shareholder is Majlis Agama Islam Wilayah Persekutuan (MAIWP) since 1 September 2014.
During the course of his employment, the Plaintiff noticed certain questionable financial activities by employees of the Defendant which he believed constituted disciplinary and/or criminal offences. He lodged reports with the Police and the MACC on 14 August 2015 and 1 September 2015 respectively (“Disclosure of Improper Conduct”). On 2 September 2015, the Police issued a notice confirming that the Disclosure of Improper Conduct was being investigated under the Penal Code.
In September 2015, investigations commenced whereby an order directing a search of the Defendant’s premises and a seizure of documents was made. On 6 October 2015, the Defendant took steps to terminate the Plaintiff’s employment contract by instituting disciplinary action for alleged employee misconduct and suspending him from his duties as the CEO (“the Detrimental Actions”).
On 16 December 2015, the Plaintiff filed an originating summons (Enclosure 1) and a notice of application for an interim injunction (Enclosure 3) against the Defendant for, among others, an order that the Defendant be restrained from continuing with the internal investigation initiated against him pursuant to a Notice of internal investigation dated 6 October 2015 and an order that his position as Chief Executive Officer of the Defendant be restored.
The Plaintiff contends that he is a whistleblower under the Act by virtue of his Disclosure of Improper Conduct, and that the disciplinary action was in reprisal of his reports to the Police and the MACC. The Court granted him a temporary injunction pending the disposal of his action.
The three issues that were originally before the Honorable Justice John Louis O’Hara were as follows:
a. Whether the Plaintiff is a whistleblower under the Whistleblower Protection Act 2010;
b. Whether there were Detrimental Actions taken against the Plaintiff by the Defendant; and
c. Whether the Detrimental Actions are in reprisal of a disclosure of improper conduct by the Plaintiff.
In the course of court proceedings over the past one year, the Plaintiff’s contract of employment was not renewed by the Defendant. This was despite representations made by the Institute on its website that he is a world class employee (http://www.ipb.edu.my/dr-syed-omar-ceo-ipb-bertaraf-dunia/). No reasons were given as to why his contract was not renewed. Considering himself being dismissed without just cause or excuse, the Plaintiff left his employment under protest and lodged a complaint with the Industrial Relations Department.
On 5 January 2017, counsel for the Plaintiff submitted in court that the Act also applied to employees whose contract had been terminated. This was in response to the Defendant’s submission that since the Plaintiff’s contract had expired on 31 August 2016, the issue had thus become academic.
The High Court Judge Justice John Louis O’Hara ruled on 20 January 2017 that the Plaintiff had succeeded in his bid to strike out the Notice of internal investigations against him over the disclosure of improper conduct to the authorities. The Judge also held that the Defendant had failed to prove that the action taken against him was not in reprisal for his disclosure to the Police and the MACC of the alleged improper conduct.
The Judge also ordered the Defendant to pay RM18,750.00 costs to the Plaintiff.
This case is a significant milestone as it reaffirms the intention of Parliament when drafting the Act to combat corruption and other wrongdoings by encouraging and facilitating disclosures of improper conduct and to protect whistleblowers (Preamble of the Whistleblower Protection Act 2010).
This precedent will hopefully empower employees in both the public and private sectors to speak up against wrongdoing in the workplace without fear of reprisal to safeguard public interest as well as to promote a healthy culture of public integrity and accountability.
Here is the grounds of judgment.