On 21st March 2022, the Dewan Rakyat approved the Employment (Amendment) Bill 2021, which was aimed at enhancing protection for workers against discrimination and further safeguarding their well-being.

 

The proposed amendment involves 46 clauses which include 28 amended clauses, 10 new clauses and six repealed clauses. This includes allowing staff to apply for flexible working arrangements from their employers depending on the suitability of the working hours, working days or workplace, as well as extending employees’ maternity leave from 60 to 98 days – in line with international labour standards as outlined by the International Labour Organisation (ILO).

 

Another big win was the rights of fathers. A 7-day paid paternity leave for married male employees for each confinement, up to a total of five confinements, irrespective of the number of spouses, was also approved.

 

Amendments to the Act also prohibits termination of female employees who are pregnant or suffering from illness arising out of her pregnancy – something that Tan May Lee, Partner & Executive Director of Perspective Strategies & Former EXCO of Women’s Aid Organisation (WAO) has been fighting for 10 years.

 

 

 

A Fight for Women’s Rights

 

In 2012, May Lee lost her job due to her pregnancy, she was 36 at the time and it was her second pregnancy. She was looking forward to join her new company in a few months’ time, when she discovered she was pregnant. She decided to inform the HR personnel in advance, instead of turning up pregnant on her 1st day at work. but to her dismay received a text message that read –

 

“Sorry to inform that our Management has decided not to proceed with the offer.”

 

Here’s the thing, it wasn’t an “offer” anymore, it was a contract signed by both parties.

 

Interested to know deeper about her fight for pregnancy discrimination, Parenthood recently reached out to May Lee where she shared through a Q&A session about the accusations and assumptions that the company’s representative said to her in a physical meeting that she had requested:

 

• I was accused of lying about my pregnancy during the job interview (FYI, I was not pregnant during the job interview).
• I was told that my productivity will be low, especially a month before my delivery date.
• I was informed that my 2 months maternity leave would be a critical period for the company, and I cannot be ‘away’.
• I was told that upon returning from my maternity leave, I may not be able to fully concentrate on work due to my newborn.

 

She then decided to file a complaint to the Industrial Relations Office and was eventually offered RM10,000 by the company – something that most people would probably have taken, but not May Lee. She declined the offer and subsequently filed a Civil Suit at the Magistrate Court.

 

We asked May Lee why didn’t she accept the offer and this is her story in her own words…

 

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I felt ‘degraded’ by the way the entire situation was handled. As a working professional who is always committed and delivers on professionalism, and at that time, being at the peak of my career, I felt that accepting the monetary compensation would imply an ‘acceptance of the discriminative situation’ (and more people may eventually face the same situation in the future).

 

All I received on the ‘revocation of my signed contract’ was a text message that the company will not proceed with my employment.

 

I had followed up relentlessly for a written revocation from the company, but it was not forthcoming. I did some research and had then reached out to AWAM (All Women’s Action Society) who advised me to write to the company instead to state in B&W that my contract was ‘revoked’. I had also stated in my letter that I would turn up for work, if I did not receive any written communication from them (as I did not want to be the party that caused the contract to be ‘nulled’, if I did not turn up for work).

 

When I reported to work on the 1st day, I asked to see their HR representative and was told to wait at the ‘waiting area’. Eventually, two security guards came to me instead, to clarify if I was ‘Tan May Lee’. When I confirmed that I am, I was then told that someone wanted to ‘see me’ downstairs. I was truly afraid then, full of apprehension and felt degraded as there were also a few individuals around me at that time. I was lost and wasn’t sure what to do. I then called my husband to explain the situation to him, and he advised me to just follow them downstairs (and assured me that, since I did turn up for work, I have then fulfilled my contractual obligations).

 

 

The two security guards escorted me to the lobby on the Ground Floor, and I was shown an A4-size notice which has my name, IC number, my picture and an instruction to ‘not let me enter the building or to go upstairs to Level 15.’

 

I asked to physically see the notice and was truly in shock then, to be treated that way as if I was a criminal. I walked away with the notice in hand, but was called by one of the security guard to return the notice to him.

 

I declined of course, walked away quickly, and was filled with mixed emotions then – anger, shock, disbelief, ashamed, embarrassed and degraded. Never could I imagine being given such treatment in the professional working world.

 

I was afraid that the security guard would ‘chase’ after me, and I had then quickly walked to a shopping mall that was adjoining to the office block I was in, and headed straight to the bathroom – and cried.

 

After a while, I composed myself, called the Industrial Relations office and decided to head to their office to file a complaint for my wrongful dismissal.

 

Through multiple mediation session via the Industrial Relations office, I was eventually offered RM10,000 by the company, which I had declined. I had then decided to file my case to be heard at the Industrial Court. After some time, I was informed that my case could not be heard at the Industrial Court as I was in a ‘unique situation’. The Industrial Court is for the hearing of wrongful dismissal for existing employees (I have not actually began my work tenure), and the two remedies in this court is reimbursement in backdated wages or reinstatement of the job position (both remedies were NOT applicable to me).

 

 

I had then conducted some research and read about Noorfadilla’s landmark case in the public sector. In 2009, the Hulu Langat Education District revoked Noorfadilla’s job offer as a temporary teacher when she informed them that she was pregnant. In a landmark 2011 judgement, the High Court ruled that revoking a job offer due to pregnancy is gender discrimination and that the government had violated Article 8(2) of the Federal Constitution, which protects against gender discrimination.

 

Based on the similarities of her case and mine, I then was certain that my case would potentially be a landmark case for the private sector. I read her court case and reached out to one of her legal counsel, but was told that my case would probably be related to Corporate Law. Eventually I knocked on the doors of multiple legal counsel, most of whom would not be keen or would not wish to take up my case.

 

Finally, through my research and referral, Kesavan Advocates & Solicitors decided to take up my case. They specialise in many cases involving human rights and workplace rights. Legal counsel Farhana Halim assisted me to file a Civil Suit filed at the Magistrate Court.

 

During the trial, the defendant implied that the contract was revoked due to my reference check (but how can a reference check not be done prior to providing me with a contract letter?). I was fortunate that I had the support of my past four employers, who testified in court in support of my work performance. For that, I would always be grateful. Ironically, when I stood trial in 2014, I was standing at the dock, pregnant with my 3rd child.

 

 

Unfortunately, there was no legal protection on pregnancy discrimination in the Employment Act 1955 for the private sector. This protection is only made available for the public sector, as outline in our Constitution Article 8(2). The only thing I hung on to was that Malaysia is a signatory to the Convention on the Elimination of All Form of Discrimination Against Women (CEDAW). That wasn’t enough for me to win my case in court. I had lost my legal battle.

 

 

For most people, they’d probably just brush it under the rug and move on, but for Tan May Lee, she decided to stand her ground and instead reached out to the Women’s Aid Organisation (WAO) and share her story with Sumitra Visvanathan, the Executive Director of WAO.

 

Through a lunch session with Sumitra and her team, they decided to bring up the ‘pregnancy discrimination’ conversation through a dipstick survey. This was in 2016, and it was the start of their collaborative efforts in terms of raising awareness about pregnancy/workplace discrimination and also advocate/lobby for changes in the legal capacity to better protect women like May Lee. For five years, May Lee and WAO worked on several gender equality PR campaigns which also extended to the rights of parents at the workplace.

 

 

Finally, on 21 Mar 2022, what they championed and fought for all these years was approved in Dewan Rakyat. “All of this is a pretty huge step forward for Malaysia,” says May Lee. “I explained to my 3 kids – age 8, 10 and 12 – about this win. I don’t think they fully comprehend it, but I told my middle girl, that this fight was for her!”

 

 

Now that the new bill has been approved, May Lee hopes that prohibition of pregnancy discrimination can be extended to job seekers since the new provision only covers those in the workforce already and does not cover job seekers. She says, –

 

“There have been cases of women who have had their job offers retracted once they’d informed their prospective employers that they were pregnant. I hope with the passing of these new amendments, there’s greater awareness and self-respect for each other in the workplace. And for those who are in decision-making roles, your support is critical – in understanding the rights of parents at the workplace, and also in protecting them.”

 

If you are faced with pregnancy discrimination or unfair dismissal at the workplace, reach out to the Labour Department (Jabatan Tenaga Kerja) at 03-8000 8000 or jtksm@mohr.gov.my. For more information, visit their website https://jtksm.mohr.gov.my.