Uphold Constitutional Rights of Pregnant Women

Women’s Aid Organisation (WAO) welcomes the Court of Appeal’s decision on 23 November 2016 to uphold Noorfadilla Ahmad Saikin’s constitutional right to gender equality, in a landmark pregnancy discrimination court case. The decision also affirms that individuals can receive compensation if their constitutional rights are breached.

Noorfadilla Ahmad Saikin was a temporary teacher at the Hulu Langat Education District. The Hulu Langat District Education Office revoked her employment offer after discovering her pregnancy.

Pregnancy Discrimination Breaches Constitutional Rights

The Court of Appeal ruled that pregnancy discrimination is a “breach of constitutional rights” under Article 8 (2) of the Federal Constitution — and that Noorfadilla is entitled to RM30,000 of damages for that breach. The Court of Appeal dismissed the Government’s cross-appeal that Noorfadilla is “not entitled any other damages apart from damages for breach of contract”. The Government had argued that there is no legal provision under Malaysian law to grant damages for the “breach of constitutional rights”.

“This ruling is significant because it could also apply to any breach of constitutional rights,” says Joachim Xavier, counsel for Noorfadilla.

This ruling sets a positive precedent, as it enables women to sue the government for damages, if a public entity discriminates them for being pregnant. WAO conducted a survey in April 2016, and we found that about 40% of pregnant women have been discriminated at work. However, only 1 in 8 of discriminated pregnant women actually lodged a formal complaint.

While we commend the Court of Appeal’s decision to uphold Noorfadilla’s constitutional rights, we also note that the amount of compensation may not reflect the gravity of the “breach of constitutional rights”.

“This is not about money, but the value of our constitutional rights. The authorities are entrusted to uphold the constitutional rights of every citizen and when they break that trust, they must be severely penalised. RM30,000 is quite low for the value of our constitutional rights, don’t you think?” says Noorfadilla.

“From the moment I started to pursue this issue, I realised that this is not just about my fight. It’s about every pregnant woman’s fight to retain their rights at work,” adds Noorfadilla.

Recognise Emotional and Mental Distress

In 2014, the Shah Alam High Court deputy registrar awarded Noorfadilla RM300,000 for breach of constitutional rights and RM 25,000 for emotional and mental distress. However, upon the Government’s appeal, the High Court Judge in Chambers reduced the compensation to RM30,000 for both breach of constitutional right as well as emotional and mental distress. The High Court Judge feared that a high award would encourage profiteering.

In the latest ruling, Court of Appeal increased her compensation to RM 40,000, adding an additional RM 10,000 for “emotional and mental distress”. The Court of Appeal also dismissed the High Court’s judgement that Noorfadilla had “profited” from the case.

“I’m happy that this court has rejected the previous court’s assessment that I “profiteered” from my unlawful termination. The court’s decision has exonerated me from being perceived as a con-woman who took advantage of my circumstances,” says Noorfadilla.

We welcome the Court of Appeal’s decision to award Noorfadilla an additional and separate compensation on the basis of  “emotional and mental distress”. But at the same time, we must also recognise the severity of this emotional and mental distress, which should be reflected in the amount of compensation.

“In considering how much damages to award to Noorfadilla, the Court of Appeal alluded to the amounts awarded in wrongful detention and physical injury cases, saying that even in such cases the amount of damages was in the region of RM100,000,” says Joachim Xavier.

“We disagree with such a comparison. Even if severity is a factor, we believe that emotional and mental distress can be more severe than physical injury. The former is harder to recognise and treat and can last a lifetime,” adds Joachim.

Protect Women in Both Public and Private Sectors

While Noorfadilla’s landmark court case affirms the constitutional right to gender equality and non-discrimination, other court cases have shown that this constitutional protection may not apply to private sector employees.

In the 2004 case of  Beatrice Fernandez v. Malaysian Airlines System, the Federal Court decided that Article 8 (2) of the Federal Constitution does not apply to agreements between private entities. Malaysian Airlines had fired air stewardess Beatrice Fernandez when she became pregnant. The Federal Court ruled that Malaysian Airlines could fire Beatrice based on the collective bargaining agreement between Malaysian Airlines and its employees.

Hence, we need comprehensive laws to protect all women from all forms of discrimination. WAO together with other women’s groups have been advocating for a Gender Equality Act since 2006. We welcome Minister of  Women, Family and Community Development YB Datuk Rohani Abdul Karim’s announcement on 2 November 2016 that her ministry is working on a Gender Equality Act.

Let’s Talk about Pregnancy Discrimination

On 30 November 2016, WAO is hosting a free public talk on pregnancy discrimination, featuring Noorfadilla Ahmad Saikin and WAO Communications Officer, Tan Heang-Lee. We will discuss what women can do if they experience pregnancy discrimination and how we can create inclusive workplaces.

The talk will be held at 1-2pm at “RUANG by ThinkCity”, 2 Jalan Hang Kasturi, Kuala Lumpur (across from Pacific Express Hotel Central Market). We invite all to join the conversation.