Workplace discrimination

Authors: Donovan Cheah (Partner) and Adryenne Lim (Legal Executive) (Donovan & Ho)

www.dnh.com.my

In response to the news concerning the ban on wearing tudung imposed by hotel owners on employees, proposals to amend the Employment Act 1955 were put forward by the Human Resources Ministry to address, among others, the issue of workplace discrimination. The ban had rightfully sparked debate about the issue of workplace discrimination, and the proposal for amendment was certainly a much needed move to fill in the gaps of our existing laws.

Unfortunately, due to the recent dissolution of parliament, any amendments to the law will have to be shelved for the time being. While there is not yet any specific legislation to tackle the issue, can individuals nonetheless rely on existing laws for protection? Where does the law currently stand in terms of protection against discriminatory practices in the workplace?

Where we are right now?

At the outset, it is necessary to point out that discrimination can occur anywhere, not just in the workplace. The discussion that follows is on workplace discrimination which should not be treated as a comprehensive discussion on discrimination in general.

Federal Constitution

The obvious source of law is our Federal Constitution which guarantees us certain rights. Often where allegations of discrimination are made, they involve infringement of more than 1 article under the constitution. For instance, the ban prohibiting employees from wearing tudung would engage article 8 (right to equality) and article 11 (freedom of religion) of the constitution. As the supreme law of the land, generally any derogation from its express provisions will require justification based on legitimate grounds (as the rights guaranteed under the constitution are not absolute), and so individuals can take comfort that their basic rights will be protected.

While theoretically correct, this view about the constitution is often contradicted by evidence. The reason for this is that because the rights under the constitution are drafted generally, their actual application will depend on court’s interpretation, which has on certain occasions resulted in individuals having little recourse to justice in cases of discrimination, for the following reasons:

1. Constitutional law — which deals with the contravention of individual rights by the Legislature or the Executive or its agencies — does not extend its substantive or procedural provisions to infringements of an individual’s legal right by another individual. The reference to the ‘law’ in article 8 of the constitution does not include agreements: Beatrice a/p AT Fernandez v Sistem Penerbangan Malaysia & Ors [2005] 3 MLJ 681 
2. Individuals have the choice to walk away from agreements which infringe his/her constitutional right. Having already agreed on such terms, the individual should not be allowed to come to court to seek justice: Nurul Shamimi Zainul Ariffin v Universiti Pertahanan Nasional Malaysia & Anor [2017] 1 LNS 1740

There have also been situations of employers blatantly specifying their preference for certain races in job vacancies or job applications (eg: “Chinese only”, “Malay only”). While many have argued that these discriminatory practices are in violation of the Federal Constitution, cases on discrimination are bound to fail if they involve infringement of an individual’s legal right by another individual/or entity (eg: a private sector employer) by virtue of the Federal Court’s decision in Beatrice a/p AT Fernandez (supra). There is also the additional problem that even without advertising their preference, employers could be rejecting candidates for discriminatory reasons anyway; since employers are under no obligation to inform candidates why they were rejected, it would be difficult to prove that such discriminatory practices were taking place.

The challenge to bring a discrimination case is further amplified by the want of clarity as to what amounts to discrimination because the constitution simply reads (article 8) “[a]ll persons are equal before the law and entitled to equal protection. No discrimination on grounds of race, descent, place of birth, or gender.”

This challenge is illustrated in the case of Noorfadilla bt Ahmad Saikin v Chayed bin Basirun & Ors [2012] 1 MLJ 832 where the court had to decide whether termination on the grounds of a person’s pregnancy was an act of discrimination based on gender (contrast with the position in the UK. UK’s Equality Act 2010 expressly provides that it is an act of discrimination if a woman is treated unfavourably because of her pregnancy).

Also, the list of protected traits under Article 8 is arguably not wide enough as it does not include other traits such as sexual orientation, disability, age, etc. This means that if an individual is refused employment on the sole ground that he is a transgender, for example, he may not have a cause of action to sue his employer for discrimination.

Legislation

Prohibitions on discrimination under Malaysian statutes are limited to very specific instances:

1. Industrial Relations Act 1967, section 5(1)(c): provides that employers shall not discriminate against any person in regard to employment, promotion, any condition of employment or working conditions on the ground that he is or is not a member or officer of a trade union.
2. Employment Act 1955, section 60L(1): provides that employees (local/foreign) may file a complaint to the Director General on the grounds that he is being discriminated against in relation to a foreign employee/local employee (as the case may be) in respect of the terms and conditions of his employment.

Apart from protection from discrimination on account of the employee’s trade union membership or nationality, there are no specific statutes enacted for the sole purpose of prohibiting discriminatory practices in the workplace.

That being said, an employee who is terminated on discriminatory grounds (eg: due to religious beliefs or for being of a certain race) will be able to seek recourse by filing a representation of unfair dismissal. Termination due to discriminatory practices without any other compelling basis is likely to be viewed by the Industrial Court as a termination “without just cause and excuse“. However, this recourse would only be available in termination situations and does not extend to, say, pre-employment practices.

Conclusion

The current laws in Malaysia may be inadequate to fully address issues of discrimination in the workplace, leaving certain individuals vulnerable to unfair treatments and exploitation without any meaningful recourse under the law. It is hoped that legislative efforts to tackle the issue will continue because everybody deserves equal opportunity and protection, regardless of their individual characteristics.