Article 8 (2) of the Federal Constitution has stated no discrimination shall be deemed against citizens on the basis of race, religion, gender, descent or place of birth in the appointment to any office or employment under a public authority. However, Article 8(2) has not bind and applicable to private sector which thus makes the employers of the private sectors could be discriminated against the citizens by looking at the race, religion or gender before hiring them. It is clearly shown that the Federal Constitution could not protect the rights of the private sectors employees and the equality in the employments matter is not yet achieved by this country. This can be supported by various cases decided in Malaysia which clearly shows that Article 8(2) of the Federal Constitution was not covered fully the entire areas of employment in Malaysia.
Datuk Shad Saleem Faruqi in the Star Online on 26 October 2017 mentioned that Article 8(2) of the Federal Constitution bans discrimination in many areas which one of it is public sector employment. However, there are other prohibitions and restrictions which would conceivably cover the private sector as well, for example the administration of any law relating to the carrying on of any trade, business, profession or vocation.Some scholars are of the view which he respectfully disagree with them stated that the shade of the Constitution applies only to “public law” situations involving the citizens’ relationship with public authorities.
2.3.2 Article 8(2) of the Federal Constitution did not covered Collective Agreement
The employees who work for private sectors did not secure their rights to not be discriminated by their employers and not being protected as they are binding to the collective agreements. This is because the reference to the ‘law’ in Article 8 of the Federal Constitution does not include a collective agreement entered into between an employer and a trade union of workmen.
In Beatrice Fernandez it was held that the guarantee of gender equality applies only to employment under a public authority, so that a flight stewardess with a private company can be sacked because she got pregnant contrary to a collective agreement. Malaysia has virtually no anti-discrimination laws for the private sector. This means that till the law changes, private businesses are free to choose their customers irrespective of the Constitution’s promise of non-discrimination.
The brief facts of the Beatrice case was that the applicant, a flight stewardess, had 11 years of service with MAS. The terms and conditions of service of the applicant were governed by a collective agreement between MAS Employees Union and MAS. Clause 2 of the collective agreement, paragraph 3 in particular, required an air stewardess to resign if she became pregnant or face termination if she became pregnant. When she became pregnant, she refused to resign and her services were thereby terminated accordingly.
One of the issues of law raised by the applicant was whether Article 8 of the Federal Constitution applied to the terms and conditions of the collective agreement. The Court of Appeal in upholding the High Court’s decision ruled that a constitutional safeguard such as the right to equality fell within the domain of public law and as such dealt only with the contravention of individual rights by a public authority i.e. the state or any of its agencies.
The Federal Court concurred with the Court of Appeal said that to invoke art.8 of the Federal Constitution, the applicant must show that some law or action of the Executive discriminates against her so as to controvert her rights under the said article. Constitutional law does not extend its substantive or procedural provisions to infringements of an individual’s legal right by another individual.
Further, the reference to the “law” in art.8 of the Federal Constitution does not include a collective agreement entered.”.The interpretation accorded by Beatrice Case on the constitutional effect is called “vertical effect” which essentially stipulates that constitutional law, as a branch of public law, only addresses the contravention of an individual’s rights by a public authority.
It was an error of jurisprudence for the judges in the Beatrice Fernandez case to hold that the guarantees of the Constitution apply only against public authorities. Many provisions of the chapter on fundamental liberties imply otherwise. A person can be allowed to discriminate in the choice of his cook, driver or maid. But when it comes to supplying a public service where there is a public law element, the safeguards of constitutional and administrative law must apply. Not the issue of public law or private law, but the criterion of reasonableness should be employed as was the case in Meor Atiqulrahman Ishak which a school can prevent the wearing of serbans at school assemblies.
2.3.3 Discrimination on the ground of races
Other than that, this can also be seen that most of the companies owned by Chinese were refused to accept Malays as employees in the companies as they were not bound by the law stated in Article 8(2) of the Federal Constitution which do not allowed discrimination on the basis of race. This is supported by the facts that in terms of income, Bumiputera households earn less 1.38 times than Chinese households. Thus, in 2008 Chinese held 34.9% while Bumiputeras held 21.9% of equity in ownership.
2.3.4 Article 8(2) of the Federal Constitution did not covered disputes between individual and individual
Furthermore, constitutional law is a branch of public law which only deals with the contravention of individual rights by the Legislature or the Executive or its agencies. The appellant, AirAsia Berhad, is a company that runs a low cost carrier. The respondent was an employee of the appellant. On 19.10.2006, the respondent was chosen to undergo an Engineering Training Program.The respondent executed an agreement known as “Training Agreement and Bond” (“Agreement”). A material term in the Agreement was that the respondent must not get pregnant during the duration of the training period. The training period was approximately 4 years from the Effective Date. At the hearing of the OS in the High Court, the respondent had elected to rely on Articles 8 and 11 of the Federal Constitution and CEDAW.
Hence, on the appeals, the learned judge erred in law and facts in not following the Federal Court’s decision in Beatrice’s case. There is no rhyme nor reason for the learned Judge not to follow the decision of the highest Court in Malaysia. The judge stated it is clear that the agreement entered between the appellant and the respondent is a lawful contract between private parties though it requires the respondent to resign upon being pregnant or termination would take place in the event of refusal to resign.In the said case, the court make such decision because AirAsia Bhd is a private sector company not under public authority.
Therefore, it shows that the infringement of one’s individual rights by another individual does not being protected. Learned counsel for appellant submitted that the learned Judge fell into serious error when she failed to apply the principle decided in the Beatrice AT Fernandez to the respondent’s OS. It was the contention of the learned counsel that the parties in the respondent’s OS are private parties and as such, the provisions of the Federal Constitution had no application. According to learned counsel, constitutional law as a branch of public law only addresses the contravention of an individual’s rights by a public authority. However, when the rights of a private individual are infringed by another private individual, constitutional law will take no recognisance of it. It is not in dispute that AirAsia Berhad, is a private limited liability company.
However, in the case of Nujaimi, the dismissal of an employee, whether in public service or in the private sector, must be based on disciplinary grounds. On the other hand, termination of an employee need not be based on any disciplinary ground but must be effected in accordance with the contract of employment.
2.3.5 CEDAW only used in defining discrimination in public sector
Furthermore, the judges came to the unhesitating conclusion all clauses contained in the Agreement, especially Clause 5.1(4), do not restrain marriage and/or prohibit pregnancy if the respondent had completed the said Trainee Aircraft Maintenance Engineer Programme in the manner as stipulated in the Agreement. Moreover, the court referred to CEDAW (Convention on Elimination of All Forms of Discrimination against Women), in defining equality and gender discrimination under Article 8(2) of the Federal Constitution as Malaysia is a part of the members committee. However, CEDAW does not applied equally as one of the sources in defining equality in
Article 8(2) as this rule only applicable to cases involving discrimination in employment that occurred in public sector which does not include private sector.
Donovan and Ho (2016) stated that the judgement made in the case of Beatrice’s will be followed as long as it concerned with private sector employees. In private sector’s cases, what matters the most is the collective agreement which will be the main sources and yardstick to be referred to if there is likely any disputes will happen in future. This is because CEDAW will only be referred to if it occurs in public sector. The court does not allow her claim in this case as she is bound with the collective agreement. Moreover, Donovan and Ho (2016) also stated that the fact that the alleged discrimination had occurrence was in accordance with what parties have agreed to in a contract are tenuous reasons for not extending the constitutional protection to them.
2.3.6 Different judgement because of different scope of employment sectors
Donovan and Ho (2016) also criticise the different judgement made by the court in the case of Beatrice a/p AT Fernandez and the case of Norfadhilla where both cases were discussing on discrimination of gender at workplace, but the court used different judgement as both of them are in different employment sectors. So, it does proved that the employees in private sector cannot uphold their constitutional rights because such right does not extend to the scope of discrimination under the Article 8(2) of the Federal Constitution.
In addition, Ahmad has quoted and criticised the judgement made in the case of Beatrice a/p AT Fernandez when the court ruled that the term in the Collective Agreement signed by the appellant did not infringe Article 8 of the Federal Constitution. She also criticise that even though there is discrimination happened, the appellant, a stewards was dismissed because she was pregnant and cannot uphold the equality in Article 8 as she was bound by the Collective Agreement because she works for private sector. This is however different if compared to the case of Norfadhilla where the court stated that Article 8(2) of the Federal Constitution only apply in the case involving discrimination occurred between nation’s executives, or agencies and not between private individual against another private individual.
In Norfadhilla case the plaintiff applied to the Hulu Langat District Education Office for the post of Guru Sandaran Tidak Terlatih (“GSTT”). Several days after the interview, she received confirmation that her application had been successful. When she attended the Hulu Langat Office as instructed, she was briefed on the terms of employment and was asked to report for duty immediately. During this time, an officer enquired if she was pregnant. She indicated that she was and, as a result, the appointment was revoked.
The main issue before the High Court was whether the action of the defendants in refusing to allow a pregnant woman to be employed as a GSTT was tantamount to gender discrimination and a violation of Article 8(2) of the Federal Constitution. What was significant in that case was the High Court’s reliance on CEDAW in clarifying what is meant by the terms “equality” and “gender discrimination”.
The High Court says that the word “gender” was incorporated into Article 8(2) of the Federal Constitution in order to comply with Malaysia’s obligation under the CEDAW. CEDAW was adopted by the General Assembly of the United Nations in 1979 and came into force in 1981. It is a landmark international agreement that affirms principles of human rights and equality for women around the world. As of April 2014, 188 states have ratified or acceded to treaty.
In that case, it involved the executive or its agencies and a private individual, thus the protection against discrimination in Article 8(2) of the Federal Constitution applies. At the outset, it would be appropriate for us to consider the decision of Beatrice case.
In Raja Abdul Rahman case, the High Court Judge quashing the Award of the Industrial Court chairman handed down on 25/5/2009 pursuant to an application for judicial review by the respondent /employer in the High Court. The appellant is an employee in the private sector and is not a public officer. Article 135 Federal Constitution and Chapter D of the General Orders do not apply with reference to any misconduct by the appellant.
The appellant was employed as a Draftsman in 1985 by the respondent. He was transferred from KL to Kerteh, Terengganu in 1987. In February, 2003, the respondent accepted the appellant’s request to leave the company on the Voluntary Separation Scheme (VSS). The appellant was notified by the respondent that his employment would cease with effect from 1/7/2003 and he would be paid the benefits as per the VSS. The appellant would receive a total separation payment benefits of RM151,445/39.
On 27/6/2003, just 4 days before his employment was to cease under the VSS (on 1/7/2003), the appellant was suspended from work with effect from 30/6/2003, pending investigations on alleged misconducts by the appellant. On 16/9/2003 the respondent preferred 4 charges against the appellant.
The 4 charges related to: (i) lying during an interview on 30/6/2003 in the course of formal investigations of the alleged misconduct; (ii) removal of computer monitor and CPU from company library without permission and placing them in a box with a view to taking them out of the possession of the respondent. Another employee, Mat Sabri, was jointly charged with the appellant in respect of the charge relating to the removal of the computer monitor and CPU. A domestic inquiry was conducted by the respondent on 30/9/2003 and 1/10/2003. The appellant was found guilty on 3 charges of misconduct. The appellant’s employment was terminated by the respondent by letter dated 16/10/2003 and the respondent denied the appellant the benefits of the VSS promised to him earlier.
The judges were of the view that the Industrial Court chairman had not erred in law when he found that the respondent had proved that the appellant was guilty of misconduct as charged. The only issue before the court was whether the Industrial Court chairman had erred in coming to the conclusion that the punishment of dismissal was without just cause or excuse.
The duty of the Industrial Court is set out in s 20 Industrial Relations Act, 1967. The function of the Industrial Court is two-fold: first, to determine whether the alleged misconduct has been established and secondly, whether the proven misconduct constitutes just cause or excuse for dismissal. Failure to determine these issues would be a jurisdictional error which would merit interference by certiorari by the High Court. The judges were satisfied that the Industrial Court chairman has considered and dealt with both these issues on their substantial merits, based on the evidence before him.
The court was of the view that the Industrial Court chairman, after finding that the appellant had in fact committed the misconduct, had correctly gone on to consider whether the proven misconduct constitutes just cause or excuse for the dismissal. The fellow judges were satisfied that the Industrial Court chairman had taken into account the entire evidence, the facts and the circumstances at the material time and concluded the dismissal was without just cause or excuse.
The judges also stated that the High Court Judge failed to appreciate the statutory duty of the Industrial Court chairman when the High Court Judge stated that it was not for the Industrial Court to decide whether the punishment was fair or not and the best person to judge the seriousness of the misconduct is the employer himself. On this issue, the cases dealing with disciplinary proceedings relating to public officers under the Federal Constitution and General Orders governing public officers, and the cases dealing with private sector employers/employees under the Industrial Relations Act, 1967 must be distinguished.
2.3.7 Inequality on benefits received by both sectors
However, there was inequality occurred in employment which benefits private sector more than public sectors when S.Morris (2000) argued that the law that governs the aspect of employment does not equally apply to the private sector employees as the public employees were commonly subjected to more restrictive labour regime than their private sector counterparts. There were a lot of advantages discussed before regarding the treatments and rights secured by the public sector employees and employers, however in the other hands, S. Morris has stated that in the event where the private sector employers may delegate responsibility for their employment practise to whatever level they choose meanwhile for the public sector, it is the same applied but with the condition that there is politically accountable individual to answer for them.
This can be seen in Malaysia, the minister will be entitled to an individual ministerial responsibility where the minister will be liable and accountable for the actions made by his ministry or office. According to M. Ahmad, Marshall and Moodie had define ministerial responsibility as “Minister are responsible for the general conduct of government, including the exercise of many powers legally vested in the Monarch; and ultimately, through Parliament and parties, to the electorate”.
He also took the definition stated by Lord Morrison which define the meaning of individual ministerial responsibility as “…. a Minister is accountable to Parliament for anything he or his department does or for anything he has powers to do, whether he does it or not. That is to say, if the action or possible action is within the field of ministerial competence, the minister is answerable to Parliament.” This can be further elaborated by the event when the Minister of Health, Datuk Seri Chua Soi Lek was resigned in 2008 because of the leaked his sex video. He was resigned from his office to avoid loss of public confidence to the government.
Furthermore, Rodgers had stated that private relationship will be contractual and involve the private power and private functions, whereas a public relationship will involve the exercise of public functions and will not be non-contractual in nature as public governed under a statutory framework which controls the functions of public body and its power.
This is however discriminate when the civil servants who were employed by the Crown will not have a contract of employment and thus the issue arose when their contracts which subjected to common law and the general common law rules determining contracts of employment were inconsistent to each other. Therefore, the civil servant who works for the Crown might face problems in claiming under common law rules relating to the contract of employment because there are various common law rules and it causes the inconsistency to the rules used by the court.
This is also similar in Malaysia when the Employment Act 1955 is only applicable to the Peninsular Malaysia’s employees as there is a separate labour enactment bound by the Sabah and Sarawak employees. Besides, the Employment Act 1955 only applicable to the private sector employees not including the public sector employees.
Bhatt (2015) has stated that there are different categories of workers in Malaysia enjoy different length of paid maternity leave. It has stated in Section 37 that the women workers in private sector are only entitled to 60 days paid maternity leave while the women workers in public sector are entitled to an additional 30 days paid maternity leave but subject to the approval. Thus, this is clearly constitute to the inequality and discrimination to the private workers in Malaysia.
As a conclusion, there are many reliable sources show that discrimination did happen at the workplaces. There must be an equal protection against discrimination in both sectors not only to the public employees as this can be seen in the cases and articles reported by the reliable authors. This can be seen in cases discussed above that Article 8(2) of the Federal Constitution only applicable when disputes between a government and individuals took placed. Article 8(2) of the Federal Constitution did not governed the disputes arose between individuals and individuals.The contract entered into by the private sector employers were said to be between individuals and individuals. Article 8(2) of the Federal Constitution did not extend the provision to be applied to the disputes arose between individuals and individuals yet. There should be an equal application of the provision so that equality in employment can be achieved