To prevent profiteering, court slashes woman’s gender equality case award by 90pc

File picture of Noorfadilla Ahmad Saikin (left), lawyer Honey Tan, pupil Arina Ong, Noorfadilla's husband Izwan, and lawyer Joachim Xavier, after the judgement at the Shah Alam High Court. — Picture courtesy of Honey Tan
File picture of Noorfadilla Ahmad Saikin (left), lawyer Honey Tan, pupil Arina Ong, Noorfadilla's husband Izwan, and lawyer Joachim Xavier, after the judgement at the Shah Alam High Court. — Picture courtesy of Honey Tan

KUALA LUMPUR, Feb 17 — Noorfadilla Ahmad Saikin, the woman who successfully sued the government for refusing to employ her because she was pregnant, saw her 2014 award for damages slashed dramatically from RM300,000 to RM30,000 this week by the Shah Alam High Court.

Judicial commissioner Datuk Azimah Omar ordered the 90 per cent cut on Monday after finding the original sum to be inappropriate and tantamount to a “handsome profit” for the woman.

The judicial commissioner added that Noorfadilla was also to blame for her own ordeal when the government revoked her appointment as a temporary teacher due to her pregnancy, as she had “not been completely honest” about her condition, having failed to disclose it during the job interview.

“Considering the complainant’s position as an untrained trainee teacher who has not yet served the country for many years, damages of RM300,000 go beyond being punitive, vindictive, exemplary or retributory and has transcended to be a thoroughly handsome profit to the benefit of the plaintiff,” Azimah said in the written ruling sighted by Malay Mail Online.

“This Court is minded that even if the plaintiff were to continue with the employment as she were, it would require tens of years of excellent service for the plaintiff to garner the sum of RM300,000. This Court will not be a conduit to afford the plaintiff a shortcut to such [a] massive sum of money,” she added.

Azimah also pointed out that Noorfadilla’s contract as a temporary teacher would have only run on a month-to-month basis.

As such, the judicial commissioner, who was presiding over the government’s appeal against the quantum of the damages awarded to Noorfadilla, reduced the award for breach of constitutional right to gender equality from RM300,000 to RM30,000.

The RM30,000 amount also includes damages for emotional and mental distress, whereas the earlier decision by Shah Alam High Court deputy registrar Ahmad Rizki Abdul Jalil had awarded Noorfadilla separate damages of RM25,000 for that.

According to the facts of the case, Noorfadilla did not reveal her pregnancy at a job interview in Hulu Langat for a temporary teacher position in 2009 when she was three months’ pregnant. She was also not asked if she was pregnant.

At a briefing two weeks later where she collected a placement notice, she and other attendees were asked to come forth if they were pregnant, to which she and two other women complied and had their placement notices retracted the same day.

In her ruling, Azimah acknowledged that the government had indeed discriminated against Noorfadilla, but said the 34-year-old woman had “knowingly acted to attempt to garner the benefit of employment...while having full knowledge that her pregnancy may hinder” the purpose of the relief teacher programme, by not informing her interviewer of her pregnancy.

“This Court cannot simply turn a blind eye to this conduct. The nation’s education force was in dire need of supplements, and the plaintiff has come forth with promise of such supplement, while knowing she might not be able to commit herself as this supplement.

“Thus, to an extent (while not negating the fact of discrimination against the plaintiff), the plaintiff has aggravated the detriment unto her own self, from her own conduct,” said Azimah.

The judicial commissioner also noted that the temporary teacher position did not allow for maternity leave according to an Education Ministry circular, which she said showed that “indeed pregnancy is an issue” and that Noorfadilla should have been “forward and honest” about her pregnancy.

Noorfadilla sued the government in 2010 after Hulu Langat district education officers revoked her appointment as temporary teacher due to her pregnancy and refused to reinstate it.

The Shah Alam High Court ruled in 2011 that the government had discriminated against Noorfadilla and, in the landmark decision, held that the United Nations’ Convention on the Elimination of All Forms of Discrimination against Women (Cedaw) had the force of law in Malaysia.

In 2014, the Shah Alam High Court awarded Noorfadilla RM300,000 in damages for breach of her constitutional right to gender equality, as well as damages of RM25,000 for emotional and mental distress, RM5,000 in costs, RM12,907.68 for loss of earnings, RM2,296.10 for loss of EPF (Employees Provident Fund), and RM912.71 for loss of EPF dividends.

Besides slashing the general damages, Azimah upheld Monday the compensation for loss of wages, EPF contributions and dividends.

The judicial commissioner also instructed Noorfadilla to pay the government RM2,000 in costs.  

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