Joint Statement – 31/1/2017
INFINEON MUST STOP UNION BUSTING AND DISCRIMINATION AGAINST UNION
LEADERS
Reinstate Zulfadlee Thye Abdullah, President of Infineon Technologies
Melaka Workers Union
We, the 55 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 Klinik 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.
Therefore, we
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
Charles Hector
Syed Shahir bin Syed Mohamud
Mohd Roszeli bin Majid
Pranom Somwong
For and on behalf of the 55
organisations, trade unions and groups listed below
ALIRAN
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
GoodElectronics Thailand
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
Global Women's Strike UK
Legal Action for Women UK
Women of Colour GWS
MTUC Selangor
& Wilayah Persekutuan
Pusat Komas
SHARPS, South Korea
GoodElectronics International Network
CIVIDEP, India
Students
& Scholars Against Corporate Misbehaviour (SACOM), Hong Kong
Parti Sosialis Malaysia (PSM)
Jaringan Rakyat Tertindas (JERIT)
Community Development Centre (CDC)
