Our previous article about pregnancy discrimination mentioned the case of Noorfadilla binti Ahmad Saikin v Chayed bin Basirun and Ors  1 CLJ 769 where the High Court found that the termination of a government teacher for being pregnant was unlawful as it was a form of discrimination and constituted a violation of the Federal Constitution.
On 23 November 2016, the Court of Appeal maintained an award of RM30,000.00 to the Plaintiff as damages for breach of her constitutional rights, and imposed an additional sum of RM10,000.00 as damages for pain and suffering.
The Plaintiff applied to the Education Office of the Hulu Langat District for the position as an untrained teacher. She was called for an interview and later asked to attend a briefing to collect her placement notice. During the briefing, attendees were asked to come forth if any of them were pregnant. The Plaintiff came forth and had her placement notice retracted. The Plaintiff filed a suit against the government for a declaration that the decision to revoke/terminate her placement was unlawful and in breach of her constitutional rights.
The High Court found that the Plaintiff should had been entitled to be employed even if she was pregnant. The revocation of her placement was therefore discriminatory and violated her constitutional rights against gender discrimination.
The matter was then sent to the deputy registrar of the High Court to assess the amount of damages that should be awarded to the Plaintiff. The deputy registrar, among other things, awarded the Plaintiff the sum of RM300,000.00 as damages for breach of her constitutional rights, and RM25,000.00 as damages for her mental and emotional distress.
On appeal by the government, the High Court reduced the damages to RM30,000.00 for both the deprivation of her constitutional rights and for all her emotional and mental distress. The High Court was of the view that the sum of RM300,000.00 was excessive since the Plaintiff was “an untrained trainee teacher who had not yet served the country for many years” and such a high measure of damages went beyond being punitive and transcended to be a “thoroughly handsome profit” to the benefit of the Plaintiff. The High Court found that if the Plaintiff was not terminated, it would have taken 10 years of excellent service for her to garner the sum of RM300,000.00.
Further, the High Court felt that it was also to take into account the fact that the Plaintiff did not disclose her pregnancy during the interview stage. While this did not negate the fact of the discriminatory conduct of the government, the High Court felt that the government as an employer was entitled to be furnished with “full information” from prospective employees. The High Court acknowledged that knowledge of the pregnancy at the interview stage could very well still result in the same discrimination against the Plaintiff, but the issue would have surfaced at an earlier stage before any added detriment or inconvenience could be laid upon both the parties. As such, the High Court took the view that a reduction of damages was appropriate.
The Plaintiff appealed to the Court of Appeal against this reduction in damages, and the government cross-appealed against the decision to award damages for breach of constitutional rights. The Court of Appeal maintained the award of RM30,000.00 for breach of her constitutional rights. The Court of Appeal went on to hold that since pain and suffering would befall anyone who was denied their constitutional rights, a separate head of damages for pain and suffering should be awarded. The Court of Appeal awarded an additional sum of RM10,000.00 to the Plaintiff for pain and suffering, and another RM10,000.00 in costs.
At the time of writing this article, the Court of Appeal’s grounds of judgment have not been published. The Court of Appeal’s decision recognises that termination of employees for being pregnant is a form of unlawful discrimination that entitles the wronged party to damages. However, due to the decision of the Federal Court in Beatrice Fernandez v. Sistem Penerbangan Malaysia & Anor  3 MLJ 681 (read more about it here), the protection against gender/pregnancy discimination only applies to employees in the public sector. Legal reform is still needed to extend this protection to employees in the private sector.
When the High Court reduced the damages awarded to the Plaintiff by 90%, some parties viewed this as a step backwards, since the reduction did not correspond to the damage that would be suffered when one’s consitutional rights are violated, but was instead referred to as “profit” to the Plaintiff. The Court of Appeal’s decision to only increase the damages by RM10,000.00 is unlikely to placate those who feel that discriminative practices should be punished by exemplary and punitive damages.
ABOUT THE AUTHOR. This article was written by Donovan Cheah. Donovan Cheah is a partner at Donovan & Ho. He is an advocate and solicitor of the High Court of Malaya, and his writings have been featured in publications like The Edge, The Star, the American Chamber of Commerce updates, and Asialaw.
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