Noorfadilla Binti Ahmad Saikin vs. Chayed Bin Basirun and Others

BUSINESS LAW AND ETHICS
GSM 5131

PREPARED FOR:
MADAM SHARIFAH MAZWIN SYED ABU BAKAR

PREPARED BY:
Michael Tang Chung Seng – PBS1311147

Noorfadilla Binti Ahmad Saikin vs. Chayed Bin Basirun and Others
1. Introduction: The Noorfadilla Case
In July 2011, the High Court delivered a landmark decision in Noorfadilla binti Ahmad Saikin v Chayed bin Basirun and Ors [2012] 1 CLJ 769, that the refusal to employ a woman on the ground of pregnancy alone is a form of gender discrimination. Even though Federal Constitution did not provide further explanation on gender discrimination, Justice Dato’ Zaleha Binti Yusof expounded the concept of gender discrimination provided under Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). CEDAW was acceded by Malaysian government on 5th July 1995.

a) Facts of the case
Noorfadilla binti Ahmad Saikin (“the Plaintiff”) applied for the post of untrained relief teacher (“GSTT”) under Ministry of Education (“Ministry”). She was called to an interview but no question was asked whether she was pregnant. After her application was accepted, she was asked to attend a briefing. During the briefing, an officer asked for anyone who was pregnant. The Plaintiff and two other women responded in the affirmative. Then the officer took back their offer letter and revoked the post offered to them.
After several attempt by the Plaintiff to seek an explanation, the Ministry replied and stated that a pregnant woman cannot be employed because among other reasons: (i) the period between time of delivery and recovery to full health is lengthy; (ii) a pregnant woman may not be able to attend to her job frequently due to various health reasons; (iii) when she gives birth, she would need to be replaced by a new teacher, who would require further briefings1. The Ministry further explained that hiring a pregnant woman for the post of GSTT did not in any way solve the shortage of teachers.
Undeterred, the Plaintiff commenced with the legal proceedings, naming two district officers, the Selangor Education Department State Director, the Chief Director of the Ministry, the Ministry and the Government of Malaysia as defendants (“Defendants”). The Plaintiff demanded that she was acknowledged as a qualified applicant for GSTT and the Defendants’ revocation of her post was unlawful, unconstitutional and void.

b) High Court decision
The Judge, Dato' Zaleha binti Yusof J, referred to CEDAW in clarifying the term ‘equality’ and the concept of gender discrimination under Article 8(2) of the Federal Constitution. Then the Court delivered the verdict in favor of the Plaintiff. This proved to be a major milestone for the lawmaker in the country, as this was the first time that international convention was used in line with our Federal Constitution.

c) Ethics issues involved in the case, decision of the court
The paper will look at gender discrimination, in particular refusal to employ a pregnant woman, from the perspective of various ethical theories. How did one justify their action as being ethical by refusing to hire a pregnant woman? Is it ethically acceptable in our society to hire a pregnant woman? Was the Judge being ethical when delivering her verdict? Was it an ethical decision by the Judge, against the Plaintiff, Defendants and society? The paper will attempt to look at all possibilities to understand how ethical theories influenced our daily life and judgment call, with or without us knowing it.

2. Looking at the case from ethical theories point of view
a) Meta ethics
(i) Moral objectivism vs. moral relativism – cultural
Everyone has the right to be employed. But as we look deeper into the concept of moral objectivism and moral relativism, there is a slight difference on how people deal with equal employment for everyone. As illustrated in the case, revoking one’s opportunity of employment just because she was a pregnant lady is wrong from the perspective of moral objectivism. As explained by the Judge, this is a form of gender discrimination. The court referred to the Canadian Supreme Court case of Brooks v Canada Safeway Ltd [1989] 59 DLR (4th) 321, that pregnancy is a form of gender discrimination “because of the basic biological fact that only women have the capacity to become pregnant”. Discrimination in itself is an act which is immoral, regardless of the circumstances. It is an act of looking down at someone because of who they naturally are, or because they are different than us. This was why the Plaintiff felt that she was victimised, treated unfairly and unconstitutionally. Generally, people acknowledge that all kinds of discrimination are wrong, which coincide with the basis of moral objectivism. However this only proves to be true if the person is only a bystander and is not involved in such situation.
One will certainly face a dilemma if they happen to be in the position of the Defendants. Although the Defendants knew that revoking her employment opportunity was a discriminating act, but they were doing what companies at large would do. Companies were looking at this from moral relativism, in other words, Malaysian’s culture point of view. In the past, some companies in Malaysia had the mindset of not hiring pregnant lady for work. It was a sad truth but a norm that was being practised silently by the corporate world. Thus in such dilemma, the Ministry took into consideration the period when the Plaintiff goes for maternity leave. It will create another issue in the future where another GSTT will need to be employed to take over her place. More time and resources will be wasted on the matter. Thus it was wiser to avoid hiring the Plaintiff. Furthermore, a lot of the local companies were doing the same thing. The Ministry felt that their action was justified from moral relativism stand point.

(ii) Emotion vs. reason
In my opinion, the Plaintiff must be emotional in facing the ordeal. Any woman who is in her shoes will feel the same. To them it is just unacceptable that the Defendants, as the caretaker of Malaysian, still practised such outdated policy. It is even unacceptable that in the 21st century, hiring a pregnant woman was still considered a no in the work place. It may be more acceptable if only the Ministry cited her incompetency in revoking her GSTT post. It was this emotion of unfair, unconstitutional treatment that propelled her to sue the Defendants. Her reasoning was that their act was equivalent to gender discrimination and in violation of Article 8(2) of the Federal Constitution.
On the other hand, the defendants gave three reasons in their effort to dismiss the Plaintiff: long maternity leave, possible underachieve performance and the vacancy due to her absence. All of these were justified reasons as the main objective of GSTT was to overcome the shortage of teachers in the country. Hiring a pregnant lady is just like got out of the frying pan and into the fire. Besides, it is worthy to take note that although the word “gender” was amended into Article 8(2) of Federal Constitution in 2001, no legislation was passed to prohibit gender discrimination. Furthermore, in the case of Beatrice AT Fernandez v Sistem Penerbangan Malaysia & Anor [2005] 2 CLJ 713, it was decided that the forced resignation of an airline stewardess after becoming pregnant was not a matter of gender discrimination. Both of these cases were slightly different, but they were involved with pregnant lady and job opportunity. This might have given the Defendants confidence and solid reasons that the outcome will pretty much side their way.
As for the Judge, she has to be impartial in delivering the verdict. She may be emotional but she was not allowed the capacity to do so. In the end, she refuted all the arguments from Defendants with facts and past cases, and gave the Plaintiff her due justice. As informed earlier, the judge was the first in Malaysia to use international convention in line with Article 8(2) to define the term ‘equality’ and ‘gender discrimination’. Relying on Mohd Ezam Mohd Noor v Ketua Polis Negara [2002] 4 MLJ 449, the Judge said that Malaysia has the obligation under CEDAW to protect women against discrimination because CEDAW is not a mere declaration, but a convention, which has the force of law. Our legislations are still lacking in many ways. Thus it was up to the Judge to take the first unbiased, reasonable move that no one else had taken before. One thing that is certain, her reasoning and decision give hopes to others that justice will prevail.

(iii) Male vs. female
People used to think that male can do their work better than their female counterpart. But in the world that we are living now, the statement may not be any more relevant. A lot of things have changed and females are starting to dominate the world. Although we may not admit it, but to some of us, there is always friction, or competition between males and females; to prove to the others who is better. In my opinion, the Plaintiff, as a female wanted to prove that even though she was pregnant, she was still capable of performing the task as a GSTT. It is undeniable that she might be easily exhausted while performing her task, but the action of the Defendants to shun her down even before she undertook the post was unacceptable to her. She might even have the extra incentive to perform her job well. This was because as a mother to be, she might have the passion to educate her students well, just as she would do to her own children.
As for the Defendants, I would say that most of those involved in the case were male. They were most probably from the older generation, where they tend to have the mindset that pregnant women cannot perform their job well. It takes a lifetime to change one’s mindset, unless they see it with their own eyes the opposite. They might be true in saying that hiring a pregnant woman is troublesome, but they should at least given her the chance to prove her worthiness. I believe that not all pregnant women are unproductive in the work place. And just like what the Judge said, the post was on a monthly basis, and the Defendants could have terminated her anytime if her performance was indeed below par. No one should have used pregnancy as an excuse to reject a woman’s employment opportunity.

(b) Normative ethics
(i) Virtue theory
The Defendants in the case were the totally opposite of what a virtuous person would do under the same situation. The Defendants were not being empathy, sympathetic and impartial towards the Plaintiff’s condition. Instead, they only thought of the issue that might arise in the future. It was noteworthy that the Defendants might have done something totally opposite if they were in a different scenario. It was possible that only on hiring a pregnant woman that they were not demonstrating their virtue. Besides that, different individual have different personal characteristic and virtue. It is impossible for everyone to see eye to eye on the same issue. Even so, I will like to believe that discrimination of any kinds is an act detestable to everyone. The only issue is when one works under an organization and without any say power. People find it hard to demonstrate the virtue that they may possess. One will certainly require virtue such as wisdom and courage to stand up for injustice.
For the Judge, impartiality is the virtue that she demonstrated in handling the case. I believe that she stood firm on her ground and not succumbed to the pressure from the Ministry. It is certainly something that we ought to learn to become a virtuous person.

(ii) Duty theory/deontologism
Pufendorfian: Duty to self and duty to others
From the case, it was notable that Defendants were only focusing on duty to self, rather than duty to others – the Plaintiff. Defendants thought for themselves. As long as their action was good for the sake of GSTT program, then it was fine. They did not consider that their action was unacceptable and unethical in our current society. They must be of the view that obligation of duty to self was much greater than duty to others. And when there was a decision to be made between those two, they would rather choose duty to self. In doing so, although they might have less issue with GSTT, indirectly their action carried the message of inequality and injustice. It is certainly not easy to do something which conforms to both duty to self and duty to others. We will always be facing dilemma in our actions.
As for the Plaintiff, I believe she tried to demonstrate both duty to self and duty to others through her action. Very few individuals will be able to withstand what she went through and called it a day. She would feel discouraged, angry, injustice and disrespect. To carry on with the legal proceedings was the only way she was able to channel her negativity out from herself. Else, it would probably lead to her distress and low self esteem. Besides, her action would bring courage to others that one must stand firm against discrimination. She tried to expose what the Defendants had done and prevent other women from receiving the same treatment that she had.
On the other hand, the Judge demonstrated duty to others, by delivering a verdict that was fair to everyone. Both sides deserved a fair trial and I believe the Judge had done just that. The decision by the Defendants to withdraw their appeal further proved that there was no ground for them to do so. I also believe the verdict to be ethical because equality, respect, goodness is promoted, not only to the Plaintiff, but the Defendants as well. Sometimes, things will be less complicated if our action is right and unquestionable in the first place.

Rights
As stated earlier, everyone has the rights to be employed, provided they are in the capacity to be employed. Everyone also has the rights not to be discriminated in any ways. Besides these being enacted in Article 8(2) of our Federal Constitution, it has also formed parts of our culture. But not everyone will be agreeable to this culture infusion. In the case, Defendants had revoked the Plaintiff’s post by citing pregnancy alone as the reason, which constituted gender discrimination according to the Judge. Therefore, Defendants had violated the rights of Plaintiff on equality. In our effort to achieve Vision 2020 to become an advanced nation, this should not have occurred. And although our constitution is vague, Article 8(2) was amended with the word “gender” in 2001 with the aim to prevent gender discrimination in workplace. Therefore, the Plaintiff had all the more reason to stand up for this inequality and demand her rights to be restored in the name of the law.
In contrast, the Defendants had the right to select suitable candidates for GSTT program. With this being said, their policy and hiring condition should be in line with Federal Constitution. No misuse of power and over step of right should have occurred. All the recruiting process should have been done in a fair and just manner. This is to ensure that those who are eligible will be employed or otherwise rejected accordingly. But sadly, the conditional hiring of the Defendants was seen in violation of the Federal Constitution. It was a misconception that they should have abolished. Else it would not go down well with CEDAW, which Malaysia had acceded in the past.

Kantian
Under the rules of Kantian Theory, the Defendants had violated almost all of them. The Plaintiff was treated as a means to achieve GSTT’s goal. The Defendants might not have the luxury to hire the Plaintiff as she would create another opening when she delivers in the future. It had also become an internationally and culturally unacceptable phenomenon that challenged basic human rights, especially on gender discrimination. Generally, peoples are open to the concept that equality to all is absolute and everyone should act accordingly. But there is still a glimpse of the society who thinks that rational is important as well. The Defendants definitely felt that it was rational for them not to hire the Plaintiff because of her pregnancy. But, their rational was flaw. They were being bias towards pregnant women in general. It was a form of discrimination and the Plaintiff might as well quash their so called rational thought by outperforming the other GSTT.

Prima facie duty
Gender discrimination is something that our society would despise of. Our constitution was even amended to cater for this. Although we might not have much determination to spell out the details, it was still a small step on our part to move in the right direction. But in real life, it is not as simple as yes or no. The Defendants were involved in a complex situation where no guidance was given on how to deal with it. General public would expect the Plaintiff to be hired as it was the right thing to do. It was unethical to reject the Plaintiff’s application just because she was pregnant. Many would expect the Defendants to be lenient and not too strict with the Plaintiff. The dilemma was that the objective of GSTT’s program would not have been met by hiring a pregnant woman as more issue would certainly to follow. Sometimes, too much consideration for others’ welfare may jeopardize our own situation. It is a delicate task to balance those two.
The job was made easy for the Judge as her verdict was in line with prima facie duty of promoting equality and preventing discrimination of all kinds. It was fortunate that there was no conflict in her duties. She might face dilemma, where in the case of Beatrice AT Fernandez v Sistem Penerbangan Malaysia & Anor [2005] 2 CLJ 713, it was held that the issue was a subject of private contract law, and had nothing to do with equality or gender discrimination. Both Article 8(2) and CEDAW were invoked as well but without success.

(iii) Consequentialist theory
Ethical egoism
This was reflected through the action of Defendants, where their action was only beneficial to themselves. They were motivated by their own selfishness, to the detriment of others. They were only concern with achieving GSTT’s objective and aiming to avoid any impending problem by hiring the Plaintiff. They did not bother about the consequence of their action towards others. As long as the result would be beneficial to the Defendants, then it was undoubtedly an ethical action.

Ethical utilitarianism
In response to the treatment given by Defendants, the Plaintiff decided to commence with legal proceedings. During that particular time, she might be thinking for herself, getting herself justice. She might also be thinking about the possible outcome of the case. The road ahead was not easy for her. In the past, a lot more victim decided to bury it away as they knew they had little chance in winning the claim against gender discrimination in this country. The case of Beatrice AT Fernandez was a proof where the verdict was in favour of the Defendants. Even though the Plaintiff was sailing in uncharted waters, the thought of the case becoming a beacon of light in this country might have push her forward as well. Rightfully in the end, her action led to utilitarianism.
Whether or not the Plaintiff realized it, she did not only claim justice for herself, but the case will become precedence for similar cases in the future. Apart from invoking Article 8(2) of Federal Constitution, particularly gender discrimination, it was the first time that any international law had been used in a local court with success. It was a big step where the Judge recognized the significance of international law which Malaysia had acceded in the past. With the Court’s decision, I believe many more will follow. Her action constituted utilitarianism as well as it will be beneficial to supplement our local laws with international laws. Our local judicial system will be able to benchmark with international standards. It is also the right time where we walk the talk.

3. Recommendation for Defendants, Plaintiff and Court
There were things that the Defendants could do differently, as the Malaysian caretaker. They should always reflect on both duty theory and consequentialist theory. It is always ideal if both the action and result are good and beneficial to the majority. Although it may be hard to achieve, we must always strive for that. With that as the fundamental support, the Defendants should be the example for all the companies in Malaysia and abolish any written or unwritten rules which are detriment to the Plaintiff, and generally pregnant women. The Circular distributed by the Ministry stated that a GSTT was not entitled to maternity leave. This is tantamount to asking a man not to get marry during his employment as GSTT. It may be nothing to some, but it is undeniably a discriminating act. Fundamentally, it is unethical. The Ministry should be understanding and supportive of pregnant women. Jobs should be offered to the eligible pregnant women without being prejudice. In my opinion, the pregnancy was only an excuse by the Ministry to reduce their work load in the future. If our own government is being bias, how are the pregnant women supposed to get employed elsewhere? By abolishing the discriminating rules and showing support and care for the Plaintiff, the Defendants are poised to bring a cultural change for a better society in Malaysia.
Besides, I will recommend not only the Plaintiff, but anyone who might be in a similar situation, to stand up against injustice, inequality in the country. The Plaintiff did just that, leaving her fate in the hands of our judicial system, which did not disappoint her. If the Plaintiff kept silent about her encounter, the only difference would be from the perspective of consequentialist theory. She would only be able to complain about it within her circle of friends and family. The Ministry would continue with their old self. Our society in general would not have change for the better.
Lastly, the Judge delivered a verdict which favoured the Plaintiff. Praises and accolades were given to the Judge for her unprecedented move, which has its significance and influence for the betterment of our society. If her verdict had been the opposite, our society would remain the same. Everyone would have the view that it was how the issue was being dealt with in Malaysia. The decision would not have been beneficial to our society, but only to the Defendants. From ethical viewpoint, everyone especially the pregnant women would have despised the court’s decision. But they could not change any of that individually. The court had indirectly set the ground rules for such issue, which would have eventually become a culture in our society. I do hope that Malaysia will not become as such.

4. Conclusion
In a nutshell, we are living in a complex world, where most of the time, there is no absolute solution to an issue. Nonetheless, the ethical values that one has been exposed of throughout their life will be a basis on how to deal with varied situations. Keeping this in mind, there will still be some other parties who are at the suffering ends; no matter what is the decision made. It is just impossible to meet the expectation of all the parties. This is especially true in cases of dilemma such as the one we have discussed. There is a lack of guidelines to address all the possible dilemmas that one may face. It is then up to the parties involved to make the judgment call, be it ethical or unethical decision. The general public will scrutinize the decision made, and either heap praise on it or criticize it. The person will then have to live with it for the rest of his life. It is through these processes that will slowly mould our society, to collectively stand for a common cause, hopefully a good cause.

5. Reference
1. Skrine. Great Expectations. Retrieved 30 June, 2014, from http://www.skrine.com/great-expectations
2. The Malaysian Bar. (30 June, 2013). Press Release: A Right Step in a Long and Unfinished Journey. Retrieved 30 June, 2014, from http://www.malaysianbar.org.my/press_statements/press_release_a_right_step_in_a_long_and_unfinished_journey.html