Article 8 of the Malaysian Federal Constitution was amended in 2001 to include gender as one of the characteristics protected from discrimination. Apart from the amendment, there are no gender specific legislations on discrimination – a need which has become apparent following the 2005 decision of the Federal Court in Beatrice Fernandez v. Sistem Penerbangan Malaysia & Anor  3 MLJ 681 (“Beatrice’s case”) which held that an employee can be legally dismissed for getting pregnant. The decision is arguably incompatible with our treaty obligations under the Convention on the Elimination of all Forms of Discrimination against Women (“CEDAW”) and is a striking example of the need for law reform.
In Beatrice’s case, the plaintiff was employed as an air stewardess and was dismissed when she became pregnant. The collective agreement which governed the relations between the employer and the plaintiff contained a clause which provided for two scenarios in the event that an air stewardess becomes pregnant: resignation or termination. The court did not find that the plaintiff was discriminated and reasoned as follows:
- the ambit of article 8 of the Malaysian Federal Constitution (equality before the law; equal protection of the law) only covers “contravention of individual rights by a public authority ie the State or any of its agencies”;
- the words “all persons are equal before the law and entitled to equal protection of the law” meant that the equality provision did not apply because the collective agreement which was impugned to be discriminatory was not “law”.
Such narrow construction of the Constitution may be ineffective to protect women from discrimination. The fact that the alleged discrimination had occurred within the private sector and that the manner of its occurrence was in accordance with what parties have agreed to in a contract are tenuous reasons for not extending the constitutional protection to them. The freedom to contract is often diminished by a variety of personal circumstances; in the context of employment, these circumstances include high unemployment rate and the pressure to provide for family, leaving the party with no choice but to accept the unfavourable employment condition.
Post Beatrice – Where Do We Go From Here?
A just cause for dismissal?
What is surprising about the outcome of the case is its failure to trigger real legislative response to remedy the problematic interpretation of the constitution. Regardless of what may be said about the soundness of the decision, it remains as law and will continue to inform judicial decision in later cases.
In 2012, the Employment Act was amended to strengthen the provisions for “maternity protection”. In the context of dismissal, the Act only prohibits employers from terminating employees during the period in which they are entitled to maternity leave (unless it is due to closure of the employer’s business).
The Act also prohibits employers from terminating an employee after her maternity leave if the employee is unable to return to work “as a result of illness certified by a registered medical practitioner to arise out of her pregnancy and confinement”, unless her absence exceeds 90 days after the end of her maternity leave. However, the Act stops short of prohibiting employers from using pregnancy as a reason of termination.
In the absence of a contractual clause similar to the one in Beatrice’s case, the question remains: does pregnancy constitute a just cause for dismissal by the employer?
In determining the question of whether a dismissal of a workman is “fair”, the Industrial Court is required by law to act according to “equity, good conscience and the substantial merits of the case”, concepts which have been held to be wide enough to capture the doctrine of proportionality. As such, pregnancy alone may not justify a dismissal if there is no obvious correlation between pregnancy and conduct which could warrant dismissal. The employer must show to the satisfaction of the court that the dismissal was justified in the circumstances.
Qualified victory: Beatrice’s case not applicable to public sector employees
It is noteworthy that in 2012, the harshness of the decision in Beatrice’s case was tempered by the High Court in the landmark case of Noorfadilla binti Ahmad Saikin v Chayed bin Basirun and Ors  1 CLJ 769 which found that the subsequent revocation of the plaintiff’s post as a GSTT (untrained teacher) upon revelation about her pregnancy was a form of discrimination. The Court held it “…is a form of gender discrimination because [it is a] basic biological fact that only women have the capacity to become pregnant…”
The court’s appreciation of the intricacies of gender issues was no doubt informed by the development in international law as not only did it make extensive references to our treaty obligations under CEDAW, it also said this: “ it has become the obligation of this court to have regard to Malaysia’s obligation under CEDAW in defining equality and gender discrimination under art 8(2) of the Federal Constitution.”
However, in so far as private sector employees are concerned, the decision in Beatrice’s case still has the force of law.
It may be too premature to treat Noorfadilla’s case as a harbinger of the courts’ readiness to respond to developments in international law and to carry out its judicial duties in a way that harmonizes any inconsistencies in the law. For example, in AirAsia Berhad v Rafizah Shima bt Mohamed Aris  MLJU 606 , a female employee executed a training agreement and bond, whereby she agreed that she would not get pregnant during the duration of the training period, which was about 4 years. The attempt to follow Noorfadilla’s case was overturned by the Court of Appeal which found that the agreement requiring the employee to resign upon being pregnant, or face termination in the event of a refusal to resign, is a lawful contract. The Court of Appeal went on to specifically hold that the agreement did not discriminate against the rights of women since “all clauses contained in the agreement … do not restrain marriage and/or prohibit pregnancy if the [employee] had completed the [training programme] in the manner as stipulated in the agreement.”
Need for wider discussion about gender roles
Some employers argue that the refusal to employ a pregnant woman, or the decision to terminate a woman for getting pregnant, is not necessarily motivated by prejudice against women but by expediency or economic necessity. There are still assumptions that women will resign, or be less dedicated to their jobs, when they have children.
In an inquiry into matters relating to pregnancy and work by the Human Rights and Equal Opportunity Commission (Australia), it was noted that “One reason for the continued failure of some workplace practices to integrate the needs and rights of women workers may be that ‘work’ is a fundamentally gendered construct. The arrangements for work in industrialised societies were made by and for the benefit of a ‘male breadwinner’, even though this model may well fit uncomfortably for significant numbers of women and men today. “
Women who are pregnant/have responsibility as a care giver would inevitably fail to meet the expectation that employees should not be absent from work for more than a certain length of time; it is an expectation borne out of a social norm which places the burden of familial responsibilities on women alone.
Had the gendered notion about work been deconstructed to reflect the equal position of both men and women in relation to responsibilities at home, the position on pregnancy might have been more favourable to women. It is therefore important to re-evaluate our habitual deference to status quo and re-engage the discussion about the kind of society we want for ourselves.
About the author: Adryenne Lim is a paralegal at Donovan & Ho. She graduated with a Bachelor of Laws from the University of Tasmania. Being passionate about social justice, she has worked with ARROW (Asian Pacific Resource and Research Centre for Women) and the Outreach and Protection Intervention Unit of the United Nations High Commissioner for Refugees (UNHCR).