ARTICLE REVIEW:

Attachment teacher get RM 40,000

for wrongful termination

NURAISHAH BINTI MOHAMED AZMI

861016-14-5250
Sources from:
Tuesday, 15 May 2018 05:16 PM MYT
https://www.malaymail.com/news/malaysia/2018/05/15/attachment-teacher-gets-
rm40000-for-wrongful-termination/1631175

1.0 INTRODUCTION

The concept unfair dismissal or unfair termination is not new in Malaysia. Over the
years, there has been a heightened awareness about employee rights in Malaysia.
Nevertheless, there are many misconceptions that have not been corrected.
Malaysian employment law requires employers to have “just cause and excuse” before
terminating their employees.

Under Section 20 of the Industrial Relations Act 1967, an employee who feels
that he/ she has been unfairly dismissed without just cause or excuse by his employer,
may lodge a representation to the Director General of Industrial Relations within 60
days from the date of his termination. By lodging this representation, the employee is
seeking for reinstatement to his former employment with the employer.

Pregnancy woman is one of the highest percentage being unfair termination in

most of the country which is more than 40% of woman in the workforce experience
pregnancy discrimination. An online survey of 222 women by the Women’s Aid
Organization (WAO) revealed that 44% of women in the workforce had either lost a
job, missed out on promotions, demoted or put through prolonged probation because
they were pregnant. It relates with article I choose to review which is involves between
the Plaintiff, a pregnant women and Ministry of Education as one of the Defendants.

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2.0 SUMMARY OF ARTICLE (CHRONOLOGY CASE)

Mid- January 2009:

Noorfadilla was offered a position as an untrained relief teacher on a month-to-month
basis
However, the offer was withdrawn when she informed the Hulu Langat district
education office that she was pregnant.

17 February 2009:
Noorfadilla (Plaintiff) sued:
1st defendant: Hulu Langat district education office, Chayed Basirun and Ismail Musa
2nd defendant: Selangor Education Department Director, Dr Zahri Aziz
3rd defendant: Education Ministry Director-General
4th defendant: Education Minister
5th defendant: The Government as defendants.

May 7, 2010:
Noorfadilla had filed a civil lawsuit, seeking a declaration that the termination of her
contract because she was three months’ pregnant, was illegal.

July 12, 2011:

Shah Alam High Court ruled on liability in favor of Noorfadilla, who sought a declaration
that pregnancy was not a reason for her to be denied employment as an untrained
relief teacher.

November 10, 2014:

High Court Senior Assistant Registrar, Ahmad Rizki Abdul Jalil awarded Noorfadilla
RM 300,000 in general damages for breach of constitutional rights and RM 25,000 in
damages for emotional and mental distress.

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3.0 CRITICAL REFLECTIONS

The article that I choose to review are involves between a mother of four, Puan
Noorfadilla Ahamd Saikin as a plaintiff, who sued the government in 2010 after Hulu
Langat district education officers revoked her appointment in 2009 whose contract as
an untrained attachment teacher or “Guru Sandaran Tidak Terlatih” (GSTT) on a
month-to-month basis upon discovering her pregnancy.

Plaintiff thus sought, inter alia, a declaration that the defendants act of
withdrawing or cancelling her appointment as a GSTT was unconstitutional, unlawful
and void and damages. The Court then ordered the matter to be remitted to the High
Court for an assessment of damages for breach of Article 8(2) of the Federal
Constitutional, which is clearly states that except as expressly authorized by the
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.

On 17 February 2009, the Ministry, on behalf of fourth and fifth defendants said
that a pregnant woman cannot be employed to the GSTT post because:

a) The period between the time of delivery to full health is too long (2 month)
b) A pregnant woman as a GSTT may not frequently be able to attend to her
job due to various health reason
c) When she gives birth, she needs to be replaced by a new teacher who will
require further briefing and cost
d) A GSTT post cannot be filled with “replacement” teacher

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4.0 REVIEW OF THE ARTICLE

Upon reading and review the article, the positive aspect I can see is pregnant woman
protected by the legal system worldwide. Back to the case, it is unlawful to terminate
a woman because of pregnancy, childbirth, or a medical condition related to pregnancy
or childbirth. Even in U.S., they have Pregnancy Discrimination Act (PDA) in 1978
which is clearly state; “forbid discrimination based on pregnancy when it comes to any
aspect of employment, including hiring, firing, pay, job assignment, promotions, layoff,
training, fringe benefits, such as leave and health insurance, and any other terms or
condition of employment.”

Besides that, women continue to climb up the corporate ladder, and are
becoming an important asset to companies. Thus, pregnant women should not be
forced to make a decision of choosing work over bearing a child. Pregnancy is a
natural thing and is crucial to the survival of mankind for many generation to come.
Many employees feel that pregnant women are a burden to the company, and that
dealing with her pregnancy would result in reduction in productivity (McDonald, 2008).
However, employers do not take into account the cost of not providing support and
flexibility to pregnant women during her pregnancy. This cost may include turnover,
absenteeism, legal suits, and compensation if discrimination suit should arise
(McDonald, 2008). If employees actively engage with pregnant women in the
workplace, it will likely contribute to business imperatives by reducing the high costs
of turnover and absenteeism.

The results from the case the court held that in interpreting Article 8(2) of the
Federal Constitution, it is the Court’s duty to take into account the Government
commitment and obligation at International level especially under an International
convention, like CEDAW, to which Malaysia is a party. It is therefore being obliged to
refer to CEDAW in clarifying the terms equality and gender discrimination. Article 1
and 11 of CEDAW, that pregnancy in this case was a form of gender discrimination.
The Plaintiff should have been entitled to be employed as a temporary teacher even
if she was pregnant.

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5.0 CONCLUSION

Pregnancy is a natural occurring blessing for all mother to be. No mother should have
fear of losing her job due to becoming pregnant. The pregnancy Discrimination Act
protects pregnant women so that they don’t have to stress about things that should
already be known. The stigma that pregnant women lessen productivity and bring
about a negative image is false information. Pregnant women are able to perform the
same tasks as everyone else unless medically noted. Society as a whole need to
realize that just because a woman is pregnant there is no need to put her out of work
because of it. The decisions should not be on the employer to determine if a woman
can perform her job but rather on her physician. It is the law that employers have to
treat pregnant employees the same as they would treat any other employee. This
practice is important to follow so that employers will not be a risk for discrimination law
suits. We as society should care because working mothers now have a voice, and now
being a mother and being a professional are not mutually exclusive (Scott, 2007)

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REFERENCE

Indramalar S. (2016, August 09). “More than 40% of women in the workforce
experience pregnancy discrimination”. Retrieved from
https://www.thestar.com.my/news/nation/2016/08/09/more-than-40-of-women-
have-experienced-pregnancy-discrimination-survey-reveals/

Izzura Izhar (2019, October 18). “Let's end discrimination against pregnant women”.
Retrieved from
https://www.nst.com.my/opinion/columnists/2019/10/530926/lets-end-
discrimination-against-pregnant-women

Maizatul Nazlina (2018, May 15). “Teacher gets RM40,000 in damages for termination
of contract due to pregnancy”. Retrieved from
https://www.thestar.com.my/news/nation/2018/05/15/teacher-gets-rm40000-
in-damages-for-termination-of-contract-due-to-pregnancy/

Ruban A. (2016, November 23). “Winner of landmark gender equality case gets more
damages on appeal”. Retrieved from
https://www.malaymail.com/news/malaysia/2016/11/23/winner-of-landmark-
gender-equality-case-gets-more-damages-on-appeal/1256389

TheSunDaily (2016, November 23). “Appeal Court Awards RM 40,000 Damages to

woman”. Retrieved from https://www.thesundaily.my/archive/2071581-
YTARCH410312

Wikipedia Contributors. (2019, November 14). The Free Encyclopedia. Retrieved

05:18, February 20, 2020, from
https://en.wikipedia.org/wiki/Constitution_of_Malaysia#Article_8_%E2%80%9
3_Equality