Prohibitions on workplace discrimination are fairly limited in Malaysia, as listed below:

• section 5(1)(c) of the Industrial Relations Act 1967: “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.”

• section 60L(1) of the Employment Act 1955: “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 or local employer in respect of the terms and conditions of his employment.”

• An employee who is terminated on discriminatory grounds (due to gender, religion, race and others) might be able to seek recourse through an unfair dismissal Termination due to discriminatory practices without compelling reasons is likely to be viewed by the Industrial Court as a termination “without just cause and excuse”. However, this recourse has its limitations as it would only be available in termination situations, and does not extend to pre-employment practices (advertising, recruitment etc.).

Although Article 8 of the Malaysia Constitution seeks to ensure equality and prohibit discrimination against individuals, the case of Beatrice A.T. Fernandez v Sistem Penerbangan Malaysia & Anor shows has confirmed that the constitutional law only addresses the contravention of an individual’s rights by a public authority, NOT when the rights of a private individual are infringed by another private individual (ie: private employer). A more recent case on workplace discrimination is the case of AirAsia Berhad v Rafizah Shima Mohamed Aris, where the court held that a clause which requires the respondent “not to get pregnant during the duration of the training period” was a lawful term between private parties, thus the agreement did not violate Article 8 of the Constitution.

Contrast this with the UK’s Equality Act 2010 which prohibits discrimination by employers against any individuals based on nine “protected characteristics”, namely: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, sex, and sexual orientation. In the UK, the Equality Act 2010 protects equal opportunity not only during employment, but extend to job advertising practices, recruitment practices, grievance procedures, employees’ benefits and other. Under comparison, the current Malaysian law is obviously flawed and inadequate to fully protects employees’ rights, leaving certain individuals vulnerable to discrimination and unfair treatment without meaningful recourse.

Comment:

Before the GE 14, there had been proposals to amend the employment law after several hotels barred their front-line female Muslim staffs from wearing hijab. It is hoped that legislative efforts to reform the anti-discrimination law will continue under the New Government to ensure a better, more equal workplace in Malaysia!