Pregnant, so no placement as relief teacher
Jun 20, 11
The Shah Alam High Court will decide on July 5 if the government committed gender-based discrimination by revoking the placement of a relief teacher upon learning that she was pregnant.
Justice Zaleha Yusof fixed the date after a hearing in chambers today, on the civil suit against the government – the first of its kind in the country.
According to Honey Tan, lawyer for plaintiff Norfadilla Ahmad Saikin(left), the suit was filed on the basis that Malaysia is a signatory to the United Nations Convention on the Elimination of all Forms of Discrimination against Women (Cedaw).
“One of our main issues is to seek a definition of ‘gender discrimination’ because there is no such definition adopted by Malaysian judges yet, and we are trying to use Cedaw for this purpose,” she said when met.
The Cedaw expressly states that governments must “take appropriate measure… to prohibit the imposition of sanctions and dismissals on the grounds of pregnancy or of maternity leave”.
Noorfadilla, 29, also cited Article 5 (the right to liberty) of the federal constitution and Article 8(2) which pertains to discrimination on the grounds of ‘religion, race, descent, gender or place of birth… in the appointment to any office or employment under a public authority’.
She is seeking a declaration that pregnancy cannot be used as an excuse to not employ a person as a untrained relief teacher (GSTT) and the revocation of the memo on her placement to be declared illegal and unconstitutional.
The memo for the month-to-month contract was revoked at a Hulu Langat District education briefing session for newly recruited GSTT, when the ministry found out she was pregnant.
According to her husband, Mohd Izwan Zakaria – who represented his wife today as she has just delivered their third child – Noorfadilla was called out during the briefing and “humiliated” for being pregnant.
“The (Hulu Langat district education officer) asked those who were pregnant to come forward. My wife and two others did. He then took away their placement memos,” he said.
Mohd Izwan said the officers had claimed that they were acting according to a 2007 circular which states that pregnant women cannot be hired as GSTT.
However, the circular sighted by Malaysiakini only states that GSTT are not entitled to maternity leave.
“One of the women who was called to the front with my wife was eight months pregnant and the job interview had been conducted within the previous month.
“Surely (the interviewer) would have seen that she was pregnant, so why was she offered a job?” he asked.
When he pursued the matter further, the Education Ministry informed him that it could not hire pregnant women because teachers need to be involved in co-curricular activities, which involve sports.
Named as respondents are Hulu Langat District education ministry officers Chayed Basirun and Ismail Musa, their department head Zahri Aziz, the director-general of the Education Ministry, the education minister and the government.
The suit is a test case assisted and led by the Malaysian Centre for Constitutionalism and Human Rights, in which co-counsel Edmund Bon is a campaigner. Also representing Noorfadilla is Shahredzan Johan.
Federal counsels Wan Roslan Wan Ismail and Aida Adha Abu Bakar are appearing for the respondents.
‘Rights are not conditional’
Also present today was lawyer Andrew Khoo and human rights commissioner Detta Samen who held a watching brief for the Human Rights Commission of Malaysia, which deems the case to be “of public interest”.
Khoo (right) said that, while there are no specific laws on gender discrimination, the amendment to the constitution in 2001 to include gender in Article 8, based on Cedaw, shows the intention.
“We would prefer a specific law, but the rights of Malaysians should not be ignored just because the government has not been proactive on this,” he said.
Commenting on the case, Association of Women Lawyers Meera Samanther said Noorfadilla was denied her equal right to work and earn a living, which should not be conditional.
“(She) was denied her right solely because she was pregnant and this is discrimination,” she said when met today.
In a joint statement, the Joint Action Group for Gender Equality called on the government and society to acknowledge maternity “as a vital social function”.
“(We) call on employers to recognise that they are duty-bound to accommodate pregnant women and not dismiss employees or prospective employees on the basis of pregnancy,” the group said.
Press Statement from the Joint Action Group for Gender Equality
For release 17 June 2011
Dismissing a pregnant woman from employment is gender discrimination and contravenes Malaysia’s Federal Constitution
On Monday 20 June 2011, at the Shah Alam High Court, there will be a hearing for Noorfadilla’s application to declare that the revocation of her appointment as a temporary teacher by the government owing to her pregnancy is unlawful, discriminatory and unconstitutional. This will be an important test case involving Article 8 (2) of the Federal Constitution and the application of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
The Joint Action Group for Gender Equality (JAG) condemns the actions of the Education Office of the Hulu Langat District (under the purview of the Ministry of Education) in offering to employ a woman as a temporary teacher and subsequently revoking this offer upon discovery that she was pregnant.
The sole reason why the woman’s job offer was taken away was that she was pregnant. This action contravenes both Malaysian law and international legal standards, namely the Federal Constitution and CEDAW.
As a brief overview of the case, in February/March 2008, a woman applied to the Education Office of the Hulu Langat District (PPDHL) for a temporary teaching position – Guru Sandaran Tidak Terlatih (GSTT). This job was due to start mid-January 2009.
The Ministry of Education had authorised State Directors of Education to employ people to fill the GSTT positions. The GSTT positions are temporary, designed to overcome a teacher shortage, and appointment is on a month to month basis.
In early January 2009, the woman was asked to attend a job interview for the GSTT position and she attended the interview as requested. A short time later in January 2009, the woman reported for work as a GSTT teacher. She was given a memo informing her of her placement by an officer from PPDHL. After this, she was asked whether she and others present were pregnant. The woman and two others said that they were pregnant. The woman was at the time three months’ pregnant. Her placement memo was then withdrawn by the officer.
Subsequently, the woman’s husband wrote to the Ministry of Education requesting an explanation. The Ministry replied in February 2010, stating that a pregnant woman cannot be employed as a GSTT because she would be absent for two months after the birth of her child thereby requiring the hiring of a replacement teacher and during the course of her pregnancy she may encounter health problems and therefore need to be absent during working hours. The Ministry’s argument is based on a misinformed perception that a pregnant woman cannot perform her tasks ably and that pregnancy can be equated to an illness.
According to international legal standards, it is the duty of the employer to accommodate difference and disadvantage. Employers must provide measures to accommodate pregnancy (which is a ‘difference’ as compared to men). Pregnancy is a vital social function to be valued by the community and a woman’s human rights must not be denied if she chooses to have a child.
The action of the Ministry of Education officers in revoking the woman’s employment offer letter is a clear case of gender discrimination and violates Malaysia’s Federal Constitution. Article 8 (2) of the Federal Constitution is explicit in declaring that “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.” In the present case, the public authority is the Ministry of Education.
CEDAW is the international framework which articulates what constitutes discrimination against women and outlines actions for States to take to eliminate discrimination. Malaysia ratified CEDAW in 1995, demonstrating the government’s commitment to the principles of the convention. CEDAW urges states to recognise both maternity as a social function and the common responsibility of men and women in raising children.
CEDAW is explicit in declaring dismissal on the grounds of pregnancy to be discrimination. Article 11 (2) of CEDAW states that “In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures: (a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave…”
The Joint Action Group for Gender Equality condemns all forms of discrimination against women. JAG calls on the Malysian government and society to acknowledge maternity as a vital social function and calls on employers to recognise that they are duty-bound to accommodate pregnant women and not dismiss employees or prospective employees on the basis of pregnancy.
The Joint Action Group for Gender Equality (JAG) comprises:
Women’s Aid Organisation (WAO)
Perak Women for Women Society (PWW)
Persatuan Kesedaran Komuniti Selangor (EMPOWER)
Women’s Centre for Change, Penang (WCC)
Sabah Women’s Action Resource Group (SAWO)
Sisters in Islam (SIS)
All Women’s Action Society (AWAM)