Justice Lim Chong Fong, who led a three-member bench, said the High Court had comprehensively dealt with the judicial review application by Farah Masyitah Nordin.
“We are mindful that generally a delay per se does not amount to condonation. However, every case has to be determined from its own peculiar facts and circumstances,” he said in delivering the broad grounds of judgment.
Lim said the core reasoning of judicial commissioner Moses Susayan (now a High Court judge) was correct, and that the seven-year delay in initiating disciplinary action demanded scrutiny.
He said the mere excuse of collecting evidence in the course of investigation was unconvincing.
Lim said when the delay was accompanied by a consistent pattern of positive affirmation – including promotions, salary increments, and the conferment of a national excellent service award – it transcended mere administrative inertia.
“This conduct amounts to condonation. The employer (government), having been fully aware of the alleged misconduct, elected to continue (Masyitah) in service and reward her performance,” he said.
Lim said it must now be stopped from resurrecting those stale allegations to justify a dismissal.
He said the failure to supply particulars of the charge, the provision of an inflated and incorrect absenteeism figure, and the denial of a right to appeal were not minor irregularities.
“They represented a fundamental denial of natural justice, depriving Masyitah of a fair opportunity to be heard and to challenge the decision against her.”
He said Masyitah’s dismissal was unfair when her misconduct during a period of severe personal hardship had been condoned for years and was followed by nearly a decade of exemplary service.
Lim, who sat with Justices Lim Hock Leng and Evrol Mariette Peters, awarded Masyitah RM10,000 in costs.
Lawyers Ernest Balasingam and Nur Afini Kamal Ariffin appeared for Masyitah while senior federal counsel Norazinawati Arshad and Afiqah Izzati Mazlan represented the government.
According to the case facts, Masyitah underwent financial difficulties, family issues, and emotional distress following two miscarriages in 2013 and 2014.
As a result, she failed to report for duty at SMKA Sultan Azlan Shah in Perak for 514 days between Jan 19, 2015, and Aug 19, 2016.
She eventually recovered and re-established herself as a dedicated, high-performing teacher. Her commitment was recognised when she received the national excellent service award in 2022.
On July 6, 2023, the education ministry issued her a show-cause letter, alleging misconduct for her absence between 2015 and 2016.
She was dismissed in October 2023 after replying to the letter.
She filed a judicial review to quash the sacking on grounds it was unreasonable, procedurally unfair, and a breach of the rules of natural justice.
She argued that her continued employment at SMK Aminuddin Baki, where she was given promotions, salary increments, and even the service award, indicated that the government had implicitly condoned her past absenteeism.
The government, however, took the position that it was not time-barred from initiating disciplinary action.