Discrimination, if exists at the workplace, undermines fairness and equality, and leads to low morale and disharmony between employees. From subtle biases to blatant acts of prejudice, discrimination poisons the professional environment and discourages productivity.
It is therefore critical for employers and employees to understand the laws and dynamics surrounding workplace discrimination, so that a culture of equity and trust can be fostered in the workplace, leading to an overall happier and higher performing workforce.
In this article, we explore the laws surrounding workplace discrimination, aiming to shed light on the path towards a fairer, more just, and merit-based workplace.
General Principles on Workplace Discrimination
The law holds that an employee cannot be dismissed based on discrimination.
This had been enunciated in many cases, one of which is Khaliah bte Abbas v Pesaka Capital Corp Sdn Bhd [1997] 1 MLJ 376 where the Court of Appeal held that “if the dismissal or termination is found to be a colourable exercise of the power to dismiss or is a result of discrimination or unfair labour practice, the Industrial Court has the jurisdiction to interfere and set aside such dismissal.”
However, what amounts to discrimination in industrial relations jurisprudence?
Instances of Workplace Discrimination
When Companies Treat an Employee Differently to Victimise the Employee
One type of discrimination that exists in the workforce is when employers intentionally treat an employee differently for ulterior motives, such as to get the employee to resign.
In Global Pest Control Sdn Bhd v. Nadaraja Vellayan [1998] 2 ILR 405, the Claimant faced continued suspension without pay after he was levelled with allegations of misconduct. After attending the Company’s inquiry, he was informed that his allegations were withdrawn and could return to work.
However, when the Claimant reported back to work, he was not given any work to do despite repeated requests. Instead, he was issued a warning letter for being absent for being in the canteen during working hours but that was because no work was allocated to him to begin with. Clearly, he was being treated differently from his colleagues.
Then, his salaries were paid very late while others in the Company received their pay on time, and the Claimant was also issued further warning letter for being late to work while other employees in the Company who were late to work did not receive such treatment.
In the end, the Claimant had no choice but to leave the Company and consider himself constructively dismissed by the Company.
While there were other reasons why the Court decided that the Claimant was indeed constructively dismissed, the Court agreed that the Claimant was discriminated at work, and said the following:
This court also found that there was substance in the claimant’s complaint of discrimination practised by the company in issuing warning letters for coming late. Other employees similarly late for work were not punished. The company, as evidence shows, singled out the claimant to pay his salary late.
Discrimination on Grounds of Participating In Unions
Another form of discrimination that appear frequently in the workplace is when union employees were treated differently because of their union membership and their participation in union activities.
On this, the Industrial Relations Act 1967 specifically prohibits such behavior, including:
Section 5 (1) No employer or trade union of employers, and no person action on behalf of an employer or such trade union shall-
…
(b) refuse to employ any person on the ground that he is or is not a member or an officer of a trade union;
(c) 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;
In Ismail Nasaruddin Abdul Wahab v Malaysian Airline System Bhd [2022] 9 CLJ 801 involving the dismissal of the president of the National Union of Flight Attendants Malaysia, Ismail Nasaruddin Abdul Wahab, by Malaysia Airline System Bhd, the Federal Court in answering the question of what is the extent of the protection afforded to an employee in respect of a charge of misconduct by an employer in relation to the employee’s acts carried out in his capacity as a trade union officer or member, the Court answered as follows:
An employee ought not to be dismissed for participation in trade union activities carried out in his capacity as a trade union officer or member, unless the activities are extraneous to trade union affairs, or were carried out maliciously, or in a manner which knowingly or recklessly disregards the truth.
The decision ultimately confirmed that an employee should not be punished just for participating in union activities, and, the decision as a whole, can be read as affirming the principle that employees cannot be discriminated by the Company for their union participation.
What About Discrimination Based on Race, Religion and Gender?
In the Public Sector
Our Federal Constitution specifically prohibits discrimination and protects equality.
Article 8 provides as follows:
(1) All persons are equal before the law and entitled to the equal protection of the law.
(2) Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.
…
Thus, when discrimination concerns employees of the state (i.e. civil servants), Article 8 of the Federal Constitution applies as seen in the case of Ahmad Tajudin Ishak v Suruhanjaya Pelabuhan Pulau Pinang [1997] 2 CLJ 225.
In Ahmad Tajudin Ishak, the “employee” was a security assistant of the Penang Port Commision and was allowed to bring a claim of unfair discrimination under Article 8 of the Federal Constitution.
The employee, on behalf of himself and 53 other security assistants, claims that the employer had conferred only ‘constable powers’ to them while others in the same salary scheme were conferred ‘sergeant powers’. Further, the appellant was paid a lower special allowance than the others.
Although the action was ultimately dismissed on the ground that the employer had acted fairly as
(1) it had invited all security assistants to apply for the higher auxiliary rank of a police sergeant, and
(2) that the additional special allowance was given to the selected police sergeants as it was statutorily provided under the Police Act 1967 and not part of the salary scheme,
the Court nevertheless considered the claim in substance and said that a claim as such was possible. The Court held that, however, to succeed in a claim of unfair discrimination, the employee must prove the following:
(i) There was some form of discrimination;
(ii) The discrimination was unfair; and
(iii) There was harm or injury as a result of the discrimination.
But in the Private Sector?
However, regrettably the same principles, and Article 8 of the Federal Constitution, are only applicable when it is a suit by an employee of the state against the state or an agency of the state, but not for an employee in the private sector.
In Airasia Bhd v Rafizah Shima Mohamd Aris. [2015] 2 CLJ 510, the respondent (Rafizah), upon being chosen to undergo an Engineering Training Program on 19.10.2006, executed an agreement known as ‘Training Agreement and Bond’ (‘Agreement’) with the appellant (Airasia).
A material term in the Agreement was that the respondent must not get pregnant during the duration of the training period, failing which she must resign or will be terminated i.e. cl. 5.1(4).
Then, when the respondent revealed her pregnancy sometime in June 2010 (while she was still in training), the Agreement as well as the employment of the respondent were terminated.
Consequently, litigation commenced between parties, which included an action whereby the respondent sought a declaration that cl. 5.1(4) is illegal & void as it had the effect of discriminating against the respondent’s rights as a married woman and contravened art. 8 of the Federal Constitution as well as the Convention on the Elimination of All Forms of Discrimination against Women (‘CEDAW’), which Malaysia is a signatory.
The case eventually arrived in the Court of Appeal. The Court of Appeal, in summary held that:
- Whilst Malaysia is a signatory to CEDAW, CEDAW does not have the force of law in Malaysia because it is not enacted into any local legislation. To give effect to treaty provisions in domestic law and to make a treaty to be operative in Malaysia, legislation must be passed by Parliament. There wasn’t any; and
- The Agreement entered between the appellant and the respondent was a lawful contract between private parties. Constitutional law (like the Federal Constitution), as a branch of public law, only addresses the contravention of an individual’s rights by a public authority, but not a contract between two willing private parties. Hence, Article 8 cannot be relied upon.
The respondent’s challenge was unsuccessful, and the termination was held valid.
The Court’s decision was consistent with an earlier case that was similar, that was Beatrice AT Fernandez v Sistem Penerbangan Malaysia and Anor [2005] 2 CLJ 713.
A Glimmer of Hope
Based on the decisions above, it is not surprising to feel that discrimination is not properly protected against in the workplace.
It may seem that discrimination cannot on its own be a cause of action to sue an employer and can only be part of one’s bigger case for constructive dismissal or wrongful dismissal.
However, there may now be a glimmer of hope, with the latest amendment to the Employment Act that came into force in 2023, which introduced several provisions that protect against discrimination.
One of which is Section 69F which provides:
(1) The Director General may inquire into and decide any dispute between an employee and his employer in respect of any matter relating to discrimination in employment, and the Director General may, pursuant to such decision, make an order.
(2) An employer who fails to comply with any order of the Director General issued under subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit; and shall also, in the case of a continuing offence, be liable to a daily fine not exceeding one thousand r inggit for each day the offence continues after conviction.
This meant that from 2023 onwards, one can file a specific complaint against discrimination at work to the Director General of Labour, to have the DG investigate the complaint and make a ruling accordingly. The consequence of discrimination may be a hefty fine until the discriminatory act ceases.
Another provision that is Section 41A, which specifically protects against termination of pregnant employees, as follows:
41A Restriction on termination of pregnant female employee(1) Where a female employee is pregnant or is suffering from an illness arising out of her pregnancy, it shall be an offence for her employer to terminate her services or give her notice of termination of service, except on the grounds of-
(a) wilful breach of a condition of the contract of service under subsection 13(2);
(b) misconduct under subsection 14(1); or
(c) closure of the employer’s business. …
Section 41A protects pregnant employees from being terminated except for 3 reasons, which alleviates discrimination against them due to their pregnancy.
That said, how these provisions apply or are interpreted by the Courts, remain to be seen, as they are rather new and the jurisprudence has not been developed.
It would be good if any of the readers who is suffering from anything similar, to consider mounting a case under these sections, to test their ambit and application.
How about in Other Countries?
At this juncture, it may be helpful to see how other countries’ law deal with workplace discrimination.
United Kingdom
In the UK, the Equality Act 2010 serves as regulates and deters workplace discrimination.
For instance, in Mr G Conisbee v Crossley Farms Ltd and Ors (3335357/2018), the Equality Act 2010 was invoked to determine whether the employee was discriminated upon due to his philosophical belief of being a vegetarian.
Europe
As for the European Union, Article 9 of the European Convention of Human Rights provides protection to promote equal treatment in the employment arena.
In Bougnaoui and Anor v Micropole SA [2017] All ER (D) 107 (Mar)C – 188/15, the Court held that there was discrimination when the Company dismissed the Claimant in response to a customer’s disapproval of the Claimant wearing a headscarf.
The Court held that the hijab did not affect the performance of the Claimant’s work as an employee. The Company in this case appeared to be relying purely on commercial interests based on the preference of its clients without consideration of equality, thus there was discrimination.
Singapore
Nearer to us, our neighbour, Singapore, has plans to table a Workplace Fairness Legislation (WFL) in the latter half of 2024.
Once enacted, the WFL will work alongside the county’s existing Tripartite Guidelines on Fair Employment Practices, which amongst others, will mandate employers to establish grievance handling processes and inform employees about the procedures of complaining about discrimination and other unfair workplace practices.
Briefly, upon receipt of a complaint, employers will be required to conduct inquiries, document the process, and communicate the outcome and action to be taken to the affected employee, while ensuring confidentiality. The legislation also prohibits retaliatory actions against employees who report workplace discrimination.
Additionally, the framework specifically prohibits employers from indicating preferences for “protected characteristics” in job advertisements, including nationality, age, sex, marital status, pregnancy status, caregiving responsibilities, race, religion, language, disability, and mental health conditions. However, there will be exceptions allowed for practical business needs and actions supporting national objectives, positive affirmative actions for specific social groups, like persons with disabilities or workers aged 55 and above.
It would certainly be prudent for Malaysian legislature to study the legislation when it is introduced.
Conclusion
In conclusion, it is truth that in present society, workplace discrimination continues to be prevalent and thus actions have to be taken by all parties to eliminate the same.
Our government should introduce stronger laws and policies to address this issue, employers should proactively uphold laws and implement rules to curb discrimination and to avoid discriminatory practices, while employees should be brave in reporting and taking legal action when faced with one.
If you believe you’ve experienced discrimination, seek guidance and assistance from a legal professional; feel free to contact us if you require the same.
This article was written with the assistance of my able former intern Connie.