5 Things About Condonation

1. Relates to an employer’s excuse/forgiveness of an employee’s wrongful act

In Public Services Commission Malaysia & Anor v Vickneswary a/p RM Santhivelu (substituting M Senthivelu a/l R Marimuthu, deceased) [2008] 6 MLJ 1 (“Vickneswary”), the Federal Court held that:

“Condonation in the context of employment contract is an act by the employer to excuse or forgive him for the wrongful act committed by the employee.”[1]

2. Can be in an active form or passive form

Zaki Azmi PCA (later CJ) held the following in Vickneswary:

“Condonation can be in the active form ie by the act of telling the person that he has been forgiven for the wrongful act done or by a passive act of not taking any action.”[2]

3. Operates as a waiver of an employer’s right to punish for misconduct

The Court of Appeal in National Union of Plantation Workers v Kumpulan Jerai Sdn Bhd, Rengam [2000] 2 MLJ 144 “agree[d] to the principle of condonation as a waiver of the employer’s right to punish for misconduct.”[3]

 Further, the learned contributors in Halsbury’s Laws of England (4th Ed) Vol 16 state the following:

“An employer who with full knowledge of his employee’s misconduct elects to continue him in service cannot subsequently dismiss him for the offence which he has condoned.”[4]

The above extract was cited approvingly by the Federal Court in Vickneswary.[5]

4. Only applies where the employer has full knowledge of the wrongful act

This was the position taken by the Federal Court in Ranjit Kaur a/p S Gopal Singh v Hotel Excelsior (M) Sdn Bhd [2010] 6 MLJ 1.[6]

Must be pleaded though the word ‘condonation’ need not necessarily be used

In Noor Bhayzura bt Dali v Suruhanjaya Perkhidmatan Awam Malaysia & Anor [2021] 6 MLJ 479, the Respondents took the position that the Appellant did not plead condonation and this argument was accepted by the High Court.[7]

On appeal, the Court of Appeal was of the view that “although the term ‘condonation’ or ‘kemaafan’ is not found in the statutory statement and the affidavit in support, ample facts have been pleaded in detail and in plain language to raise this as a ground for judicial review.”[8] Thus, condonation was actually pleaded.