IT IS commonplace to come across job advertisements seeking potential employees of a certain race or, sometimes, job requirements can be coyly masked in the form of needing specific language skills that may exclude certain classes of people. Occasionally, we may also hear about employee grouses on being discriminated for a myriad of reasons including gender, race, religion, disability, nationality, etc.
In Malaysia, the laws on discrimination in the workplace are in their infancy. Malaysia has yet to reach the stage where omnibus legislations like the United Kingdom’s Equality Act 2010 can be enacted to combat workplace discrimination. However, this is not to say there is no legal protection against workplace discrimination, sparse and scattered as it may be, throughout the various laws in Malaysia.
Does the Federal Constitution protect against workplace discrimination?
The bulk of this protection stems from Article 8 of the Federal Constitution which enshrines the principle of equality. In the Federal Court’s landmark employment case of Beatrice AT Fernandez v Sistem Penerbangan Malaysia & Anor, it ruled that Article 8 only applies to the legislature, government authorities and Parliament, and does not extend to the private sector.
In Beatrice’s case, the claimant was a female flight attendant who entered a contract for service with Sistem Penerbangan Malaysia (SPM) where the terms and conditions of the contract were governed by a Collective Agreement (CA). The terms of the CA specified that the contract would be terminated in the event of pregnancy. When Beatrice became pregnant, her contract was promptly terminated. She brought an action against SPM on the grounds that the terms of the CA infringed Article 8. The Federal Court held, in this instance, that the CA was a lawful contract entered into between two private parties and thus could not amount to an infringement as Article 8 did not apply to the private sector.
What about employees in the private sector then?
The good news – the tort of unfair discrimination exists to fill this very gap. For an employee to allege unfair discrimination within the scope of this tort, the following elements must be present:
1) there must be some form of discrimination: discrimination arises only when equals are treated unequally or when unequals are treated equally;
2) the discrimination must be unfair: discrimination must be accompanied by an element of harshness or unfairness, or that there was unjust or unreasonable unfair bias in favour of one and against another; and
3) there must be resultant harm or injury that is recognised by law (damage): i.e. monetary or non-monetary loss.
Thus, employees in the private sector may also be shielded against workplace discrimination to a certain extent.
Additionally, in very niche instances, the Industrial Relations Act (IRA) 1967 and the Employment Act (EA) 1955 also provide protection against discrimination as follows:
0 Section 5(1)(c) of the IRA 1967: prohibits discrimination on grounds of participation in a trade union; and
0 Section 60L of the EA 1955: stipulates that the director-general may inquire into any complaint from a local employee that there is discrimination as against a foreign employee.
However, as can be observed, the protection stemming from such legislation is limited.
What options are available when there is discrimination?
If employees find themselves being discriminated, it is possible to voice their concerns via the internal grievance measures available within their organisation. This may take the form of an anonymous complaint or an open conversation with the relevant Human Resources personnel. In all circumstances, the employees should be assured that they will be protected against any forms of retaliation and that their complaint will be treated with utmost confidentiality. Further, the company will be obliged to investigate the complaint within a reasonable timeframe.
The employers’ perspective
An employer who receives an internal complaint of discrimination should take steps to manage the matter effectively by formalising the complaint, conducting an internal investigation, interviewing witnesses, issuing a show cause letter against the perpetrator (if necessary), conducting a domestic inquiry, terminating the perpetrator (if found guilty). These actions should be taken only after legal consultation.
Countermeasures against workplace discrimination
Until our legislative framework catches up with the evolving expectations in the workplace, employers may take counter measures to address the risk of workplace discrimination. These steps may range from putting in place policies against workplace discrimination (including training) and streamlining considerations in the recruitment process.
By being sensitive to such matters, employers also ensure they are employee-sensitive, and this enhances their ability to remain competitive when attracting the best talent to their organisation.
This article was contributed by Nalina Santhiran of Christopher & Lee Ong.
