By:
Bryan Lui (Co-Managing Partner) [bryan_lui@luibhullar.com]
Harneshpal Karamjit Singh (Co-Managing Partner) [harnesh_bhullar@luibhullar.com]
Understanding Workplace Discrimination Laws in Malaysia
Under Malaysian law, employees cannot be dismissed based on discrimination. Courts have reinforced this principle in various cases, such as Khaliah bte Abbas v Pesaka Capital Corp Sdn Bhd [1997] 1 MLJ 376, where it was ruled that if a dismissal results from unfair labour practices or discrimination, the Industrial Court Malaysia has jurisdiction to intervene and overturn the dismissal.
Examples of Workplace Discrimination
Employers Victimising Employees
One common form of discrimination is when an employer intentionally treats an employee differently to force them to resign. In Global Pest Control Sdn Bhd v. Nadaraja Vellayan [1998] 2 ILR 405, the Claimant was treated unfairly—given no work, issued unfair warnings, and paid late compared to colleagues—eventually leading to constructive dismissal.
The Court found that the employer discriminated against the Claimant, supporting the Claimant’s claim that he was singled out unfairly.
Discrimination Based on Union Membership
The Industrial Relations Act 1967 prohibits discrimination against employees based on their participation in trade unions. Section 5 states that an employer cannot refuse to employ, dismiss, or discriminate against an employee due to union membership.
The case of Ismail Nasaruddin Abdul Wahab v Malaysian Airline System Bhd [2022] 9 CLJ 801 reaffirmed that employees cannot be dismissed for engaging in legitimate trade union activities.
Discrimination Based on Race, Religion, and Gender
Public Sector Protections
Article 8 of the Federal Constitution of Malaysia ensures equality and prohibits discrimination in public employment. This was highlighted in Ahmad Tajudin Ishak v Suruhanjaya Pelabuhan Pulau Pinang [1997] 2 CLJ 225, where employees could challenge unfair treatment under constitutional provisions.
Private Sector Limitations
Unfortunately, the same constitutional protections do not extend to the private sector. In Airasia Bhd v Rafizah Shima Mohamd Aris [2015] 2 CLJ 510, an employee’s contract was terminated due to a pregnancy clause. The Court of Appeal ruled that Article 8 of the Federal Constitution does not apply to contracts between private parties.
A similar ruling was given in Beatrice AT Fernandez v Sistem Penerbangan Malaysia and Anor [2005] 2 CLJ 713.
Recent Amendments Offering Hope
The Employment Act 2023 Malaysia introduced key provisions to curb discrimination. Section 69F allows the Director General of Labour Malaysia to investigate workplace discrimination complaints, imposing fines of up to RM50,000 on non-compliant employers.
Another new provision, Section 41A, protects pregnant employees from termination except for misconduct, breach of contract, or business closure.
International Perspectives on Workplace Discrimination
United Kingdom:
The Equality Act 2010 prohibits discrimination based on race, gender, religion, and other protected characteristics.
European Union:
Article 9 of the European Convention on Human Rights ensures equal treatment in employment, as demonstrated in Bougnaoui and Anor v Micropole SA [2017], where dismissing an employee for wearing a hijab was ruled discriminatory.
Singapore:
Singapore plans to introduce Workplace Fairness Legislation (WFL) in 2024, which will require employers to handle discrimination complaints transparently and prohibit retaliatory actions against whistleblowers.
Conclusion
Despite existing protections under labour law in Malaysia, workplace discrimination remains a concern. Stronger policies and legal frameworks are needed to provide better protection for employees. Employers must implement anti-discrimination policies, while employees should seek legal assistance from an employment law firm in Kuala Lumpur when facing discrimination.
For legal advice on workplace discrimination, wrongful termination, or employment contracts, consulting an employment contract lawyer in Malaysia or a workplace discrimination lawyer in Malaysia can be crucial in protecting your rights.
If you need assistance, consider reaching out to an industrial relations lawyer in Malaysia or searching for employment lawyers near me to discuss your case.
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