NOORFADILLA BT AHMAD SAIKIN v CHAYED BIN BASIRUN & ORS [2012] 1 MLJ 832

1. Introduction

Noorfadilla bt Ahmad Saikin v Chayed bin Basirun & Ors [2012] 1 MLJ 832 is an important Malaysian case on pregnancy and gender discrimination under Article 8(2) of the Federal Constitution.¹ The case concerns the withdrawal of a temporary teaching appointment after the plaintiff disclosed that she was pregnant. The plaintiff, Noorfadilla Ahmad Saikin, had been selected as a Guru Sandaran Tidak Terlatih (“GSTT”) under the Ministry of Education, but her placement was later withdrawn when the authorities found out that she was three months pregnant. She then brought an action against the education authorities, the Ministry of Education and the Government of Malaysia.

The case is significant because the High Court had to determine whether discrimination against a woman on the ground of pregnancy amounted to gender discrimination under Article 8(2) of the Federal Constitution. The court also took into consideration Malaysia’s obligations under the Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”) in deciding this issue. The court eventually held that discrimination on the ground of pregnancy is a form of gender discrimination.

This analysis argues that the central holding in Noorfadilla is both correct and necessary, that the court’s treatment of CEDAW as having domestic force of law is the weakest part of an otherwise persuasive judgment, and that the statutory reforms introduced since the decision, while welcome, still leave the gap that Noorfadilla itself illustrates.

2. Facts of the Case

The Ministry of Education introduced the GSTT scheme as a temporary measure to deal with teacher shortages in Malaysia. GSTTs were appointed on a month-to-month basis under Pekeliling Perkhidmatan Kementerian Pelajaran Malaysia Bil 1/2007. Under the circular, GSTTs were not treated as permanent government employees and did not receive several benefits enjoyed by permanent teachers, including maternity leave.

The plaintiff applied for a GSTT position through the Hulu Langat District Education Office (“PPDHL”) and was called for an interview on 2 January 2009. During the interview, she was asked about her background and her suitability for the position, but she was not asked whether she was pregnant.

On 11 January 2009, she received a text message from a PPDHL officer instructing her to come to the office to collect her placement memorandum. The following morning, she was given a placement at Sekolah Menengah Kebangsaan Tinggi Kajang. She and the rest of the successful applicants were then briefed on their terms of service and told to report for duty immediately.

During the briefing, an officer asked whether any of the applicants were pregnant. The plaintiff, who was three months pregnant at the time, disclosed her pregnancy together with two other women. Her placement memorandum was then taken back. Her pregnancy was therefore the reason she was prevented from taking up a position she had already been offered.

The plaintiff later sought an explanation from the Ministry of Education regarding the withdrawal of her placement. The Ministry defended its decision by reference to several practical concerns: the recovery period after childbirth, possible absences for health reasons, the need to find a replacement teacher, and the temporary nature of the GSTT scheme. It maintained that the scheme was meant to ease teacher shortages and should not create further staffing problems.

After attempts to resolve the matter failed, the plaintiff, through her solicitors, demanded that her appointment be restored. She eventually filed an originating summons on 7 May 2010. Among the relief sought was a declaration that the withdrawal of her appointment was unconstitutional, unlawful and void, as well as damages.

3. Legal Issues and Arguments

Three questions arose. The first was whether the plaintiff had standing to bring the action at all. The second was whether declaratory relief was available to her under section 41 of the Specific Relief Act 1950.² The third, and the central question, was whether the defendants’ refusal to allow her to take up the GSTT position because she was pregnant amounted to gender discrimination under Article 8(2) of the Federal Constitution. The sections below take the issues in that order, which is the order in which the court addressed them.

3.1 Whether the plaintiff had standing to bring the action

The defendants argued that there was no binding employment contract between the parties. On that basis, they contended that the plaintiff had not acquired a legal right that would allow her to bring the claim.

The plaintiff’s position was that the claim was not simply about enforcing a contract. She was challenging the withdrawal of her placement on the ground that the decision had affected her constitutional right under Article 8(2). The question was therefore whether the absence of a completed employment contract prevented her from challenging the alleged violation of that right.

3.2 Whether declaratory relief was available under section 41 of the Specific Relief Act 1950

The court also had to consider whether the declarations sought by the plaintiff were available under section 41 of the Specific Relief Act 1950. The defendants’ argument was tied to their position that she had no enforceable contractual right to the GSTT post.

The plaintiff, however, was asking the court to determine the legal effect of the withdrawal of her placement and whether that action was unconstitutional, unlawful and void. She also claimed damages in addition to the declarations sought. The issue was therefore whether her claim concerned a legal right or status that could properly be determined through declaratory relief under section 41.

3.3 Whether pregnancy discrimination fell within Article 8(2)

The plaintiff’s argument was that the withdrawal of her placement was entirely because of her pregnancy, and that this amounted to gender discrimination. She relied on Article 8(2) of the Federal Constitution together with Malaysia’s commitment under CEDAW, especially Articles 1 and 11, which deal with discrimination against women and equal treatment in employment.³

The defendants justified the decision by reference to the nature of the GSTT scheme and the practical difficulties that could arise if a pregnant GSTT needed to take time off work, namely health-related absences, the recovery period after childbirth and the need to arrange a replacement teacher. They also relied on the principle of reasonable classification and argued that the matter involved government policy, an area in which courts should generally avoid unnecessary interference.

A related question was whether CEDAW could be used to help interpret the meaning of “gender” in Article 8(2). The plaintiff relied on Malaysia’s ratification of CEDAW and on the fact that “gender” was later added to Article 8(2) through the 2001 constitutional amendment. The defendants, for their part, referred to Beatrice a/p AT Fernandez v Sistem Penerbangan Malaysia & Ors,⁴ where the Federal Court held that Article 8 did not extend to a purely private contractual relationship. This raised the issue of whether the same principle applied to Noorfadilla’s case.

4. The Court’s Decision and Reasoning

4.1 Declaratory relief and locus standi

The court first considered whether the plaintiff possessed the locus standi to pursue her claim for declaratory relief under section 41 of the Specific Relief Act 1950. The defendants claimed that there was no binding contract of employment between the parties. The court found, however, that her claim was not purely contractual in nature. She was challenging a decision that affected her legal status and her constitutional right. The requirements of section 41 were therefore satisfied, the plaintiff having also claimed damages alongside the declarations.

4.2 Article 8(2) and the application of CEDAW

In considering Article 8(2) of the Federal Constitution, the court considered the inclusion of “gender” through the constitutional amendment in 2001 and Malaysia’s commitment under CEDAW. Articles 1 and 11 of CEDAW were particularly relevant, as they deal with discrimination against women, equal employment opportunities and pregnancy-related discrimination.⁵ The court also referred to Minister for Immigration and Ethnic Affairs v Teoh⁶ and Vishaka v State of Rajasthan⁷ when considering the role of international obligations in interpreting domestic constitutional rights.

4.3 Pregnancy discrimination as gender discrimination

The court held that discrimination based on pregnancy falls within gender discrimination under Article 8(2). Its reasoning centred on the fact that only women can become pregnant. Treating a woman differently because of pregnancy places her at a disadvantage on a ground that is directly connected to her gender. The court also referred to Brooks v Canada Safeway Ltd,⁸ where the burden placed on women as a result of pregnancy-related discrimination was recognised.

4.4 Reasonable classification

The defendants sought to justify the different treatment of pregnant GSTTs through the doctrine of reasonable classification. The court did not accept this reasoning. It drew a distinction between Article 8(1), which guarantees equality in general terms and to which reasonable classification may be relevant, and Article 8(2), which prohibits discrimination on any of the listed grounds, including gender. The court relied on Public Prosecutor v Datuk Harun bin Haji Idris & Ors⁹ in drawing this distinction.

4.5 Government policy and the GSTT scheme

The defendants further submitted that the non-appointment of pregnant GSTTs was a matter of policy. Although the court acknowledged that the judiciary should generally be cautious before interfering in policy decisions, it was not satisfied that any such policy had in fact been established. The relevant circular did not prohibit the appointment of pregnant women as GSTTs; it provided only that GSTTs were not eligible for maternity leave.

The defendants also put forward a number of practical considerations. They argued that pregnancy could lead to absences, that time would be needed for recovery after childbirth, and that replacement teachers would be required, all of which would defeat the objective of the GSTT scheme in filling teacher shortages. The court found these concerns unconvincing, because GSTT appointments were already temporary and renewed on a month-to-month basis. Even a GSTT who was not pregnant had no guarantee that her service would continue.

4.6 The application of Beatrice Fernandez

The court then considered Beatrice a/p AT Fernandez v Sistem Penerbangan Malaysia & Ors.¹⁰ In Beatrice, the Federal Court stated that an Article 8 claim required some discriminatory law or action of the Executive, and that Article 8 did not generally extend to a purely private contractual relationship.

Rather than rejecting Beatrice, the High Court applied the same principle to the circumstances before it. The defendants in Noorfadilla were public authorities and agents of the Executive, as those terms are understood under Article 160 of the Federal Constitution.¹¹ The withdrawal of Noorfadilla’s placement therefore involved executive action. The requirement identified in Beatrice was satisfied, and Article 8(2) could apply to the defendants’ decision.

4.7 Final decision

The High Court held that withdrawing Noorfadilla’s GSTT placement because of her pregnancy amounted to gender discrimination and violated Article 8(2) of the Federal Constitution. Her application was allowed, and the court made no order as to costs, considering the case to be a matter of public interest.

5. Critical Analysis

The outcome is plainly right on its facts. What merits closer examination is the reasoning that produced it: which parts of it will bear weight in later cases, and which will not.

5.1 Pregnancy discrimination as gender discrimination

One of the strongest parts of this case is the court’s recognition that discrimination based on pregnancy can amount to gender discrimination under Article 8(2) of the Federal Constitution. This matters because the court did not treat pregnancy as a matter entirely separate from gender. Since pregnancy is a condition experienced only by women, treating a woman less favourably because she is pregnant will inevitably affect women as a group.

This gives Article 8(2) real practical effect. If pregnancy were treated as an entirely separate matter, an employer or public authority could avoid the prohibition against gender discrimination simply by asserting that the different treatment was based on pregnancy rather than gender. That would weaken the protection under Article 8(2) in practice. A similar approach can be seen in Webb v EMO Air Cargo (UK) Ltd,¹² where pregnancy was treated differently from ordinary illness and unfavourable treatment on the ground of pregnancy was recognised as sex discrimination.¹³

5.2 Administrative convenience should not be sufficient

The court was also justified in rejecting the reasons given by the defendants. The defendants argued that pregnant GSTTs would require more medical leave, would need time to recover from childbirth, and would create difficulties because a replacement teacher would have to be found. Understandable though these concerns may be as a matter of administration, they should not automatically justify denying employment to a woman solely on the ground that she is pregnant.

That is particularly so here, because the GSTT position was already temporary and operated on a month-to-month basis. Even a GSTT who was not pregnant had no guarantee of continued employment. The circular did not expressly prohibit pregnant women from becoming GSTTs; it stated only that GSTTs were not entitled to maternity leave. In that sense, the decision to withdraw the plaintiff’s placement went beyond what the circular actually said.

There is a wider issue here. If administrative inconvenience is readily accepted as a justification, pregnancy will continue to be treated as a burden in the workplace. Expectations that employees should remain continuously available for work may look neutral, but they affect women disproportionately, because pregnancy and caregiving responsibilities still fall more heavily on them.¹⁴

5.3 Different protection in public and private employment

At first glance, this case may seem inconsistent with Beatrice a/p AT Fernandez v Sistem Penerbangan Malaysia & Ors.¹⁵ The two cases can, however, be distinguished. In Beatrice, the Federal Court held that Article 8 operates within the field of public law and does not apply in the same way to a purely private contractual relationship. In Noorfadilla, the High Court did not reject that principle. It found instead that the defendants were public authorities and agents of the Executive. The requirement in Beatrice was satisfied because the withdrawal of Noorfadilla’s placement came from public authorities.

From a constitutional point of view, then, Noorfadilla is not really the opposite of Beatrice. It applies the same principle in a different context. The difficulty is that the rule creates a clear divide between public and private employment. A woman who is discriminated against by a government authority may rely on Article 8(2), while a woman facing similar treatment from a private employer cannot necessarily rely on the same constitutional protection.

This divide became more apparent in AirAsia Bhd v Rafizah Shima bt Mohamed Aris,¹⁶ where the Court of Appeal relied on Beatrice and held that Article 8 did not apply to AirAsia in the same manner because it was a private entity. Constitutional protection against pregnancy discrimination therefore remains limited in private employment.¹⁷ This does not mean that Article 8 should be extended automatically to every private employment relationship. It does show, however, that constitutional protection alone is not enough to address pregnancy discrimination across the workforce.¹⁸

5.4 The court’s use of CEDAW

Another important feature of Noorfadilla is the court’s reliance on CEDAW. That reliance was helpful, because Malaysia was already a state party to the Convention and the word “gender” was subsequently added to Article 8(2). It therefore made sense for the court to refer to CEDAW when working out the scope of gender discrimination.

The difficulty is that the court went further and stated that CEDAW itself had the force of law in Malaysia. This part of the reasoning became more questionable after the Court of Appeal’s decision in AirAsia v Rafizah Shima, where it was held that CEDAW had not been incorporated into Malaysian domestic law and therefore did not automatically have legal force merely because Malaysia had ratified it.¹⁹

That position reflects Malaysia’s dualist approach to international law. Ratification of a treaty does not ordinarily mean that the treaty immediately becomes enforceable as domestic legislation; it must usually be incorporated through an Act of Parliament.²⁰ This is the principal weakness in the reasoning in Noorfadilla.

Even so, it does not follow that the court was wrong to refer to CEDAW at all. There is a difference between saying that CEDAW is directly enforceable Malaysian law and saying that CEDAW can help a court interpret an existing constitutional provision. The second proposition is far easier to justify. The judgment would have been stronger had CEDAW been treated primarily as an interpretative guide to Article 8(2), rather than as a treaty that automatically carried domestic legal force.

5.5 Developments after the 2022 amendments

The legal position has changed since Noorfadilla was decided. The Employment (Amendment) Act 2022, which came into force on 1 January 2023, provides greater protection to pregnant employees. Section 41A of the Employment Act 1955 restricts employers from terminating, or giving notice of termination to, a pregnant female employee except in certain instances, such as misconduct, wilful breach of contract or closure of the employer’s business.²¹

It is also noteworthy that the amendment places the burden of proof on the employer. If a pregnant employee is terminated, the employer must prove that the termination was not because of her pregnancy or an illness arising out of the pregnancy. This gives employees stronger protection than existed when Noorfadilla was decided.²²

The amendments also allow the Director General to inquire into disputes relating to discrimination in employment.²³ The term “discrimination”, however, is not defined in the amending Act, which may create uncertainty.²⁴ Section 41A deals clearly with the termination of an existing employee, but Noorfadilla involved something slightly different: her placement was withdrawn before she had started work. Section 41A therefore does not clearly address all forms of pregnancy discrimination, such as:

• refusal to employ during the application process;
• withdrawal of a job offer already made;
• discriminatory access to training; and
• discriminatory decisions on promotion.

Malaysia has made clear progress in protecting pregnant employees, but the protection is still not as comprehensive as it could be. A clearer statutory definition of employment discrimination, one that includes pregnancy and potential pregnancy, would provide greater certainty and ensure that protection extends beyond termination alone.²⁵

6. Conclusion

Noorfadilla was an important case because it recognised pregnancy discrimination as a form of gender discrimination under Article 8(2). The protection it offers, however, remains tied to the public-law character of Article 8, and the court’s treatment of CEDAW as domestically binding has since been doubted at appellate level. The judgment is strongest where it reasons from the constitutional text and weakest where it reasons from an unincorporated treaty.

The 2022 amendments to the Employment Act have improved protection for pregnant employees, particularly in cases involving termination. Recruitment, the withdrawal of job offers and other forms of pregnancy-related discrimination are still not addressed as clearly. For that reason, Noorfadilla remains relevant both for the principle it established and for showing where Malaysian law still needs clearer protection.

Endnote(S):

1. Federal Constitution, art 8(2).
2. Specific Relief Act 1950, s 41.
3. Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13, arts 1 and 11.
4. Beatrice a/p AT Fernandez v Sistem Penerbangan Malaysia & Ors [2005] 3 MLJ 681 (Federal Court of Malaysia).
5. CEDAW (n 3) arts 1 and 11.
6. Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353 (High Court of Australia).
7. Vishaka v State of Rajasthan AIR 1997 SC 3011 (Supreme Court of India).
8. Brooks v Canada Safeway Ltd (1989) 59 DLR (4th) 321 (Supreme Court of Canada).
9. Public Prosecutor v Datuk Harun bin Haji Idris & Ors [1976] 2 MLJ 116 (High Court of Malaya, Malaysia).
10. Beatrice (n 4).
11. Federal Constitution, art 160.
12. Webb v EMO Air Cargo (UK) Ltd (Case C-32/93) [1994] ECR I-3567 (European Court of Justice).
13. Ho Wen Hui, ‘Pregnancy Discrimination in the Workplace: The Trend of Decided Cases and Proposed Suggestions for Malaysia’ (2019) 8 HSLJ 18, 19.
14. Adryenne Lim, ‘Pregnancy Discrimination: The Need for Law Reform in Malaysia’ (Donovan & Ho, 21 March 2016).
15. Beatrice (n 4).
16. AirAsia Bhd v Rafizah Shima bt Mohamed Aris [2014] 5 MLJ 318 (Court of Appeal of Malaysia).
17. Ho Wen Hui (n 13) 25–26.
18. Foo Siew Li, ‘The Pregnant Pause’ (Skrine, 30 September 2014).
19. AirAsia Bhd v Rafizah Shima bt Mohamed Aris (n 16); see also Ho Wen Hui (n 13) 25–26.
20. Ho Wen Hui (n 13) 25–26.
21. Employment Act 1955, s 41A, inserted by the Employment (Amendment) Act 2022 (in force 1 January 2023).
22. Jack Yow, ‘All Employees Irrespective of Wages to be Covered under Amended Employment Act 1955 from 1 January 2023’ (Rahmat Lim & Partners, 6 September 2022).
23. Employment Act 1955, s 69F.
24. Employment (Amendment) Act 2022; Ho Wen Hui (n 13) 27.
25. Ho Wen Hui (n 13) 27.

Reference(S):

Cases

• AirAsia Bhd v Rafizah Shima bt Mohamed Aris [2014] 5 MLJ 318 (Court of Appeal of Malaysia).
• Beatrice a/p AT Fernandez v Sistem Penerbangan Malaysia & Ors [2005] 3 MLJ 681 (Federal Court of Malaysia).
• Brooks v Canada Safeway Ltd (1989) 59 DLR (4th) 321 (Supreme Court of Canada).
• Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353 (High Court of Australia).
• Noorfadilla bt Ahmad Saikin v Chayed bin Basirun & Ors [2012] 1 MLJ 832 (High Court of Malaya, Malaysia).
• Public Prosecutor v Datuk Harun bin Haji Idris & Ors [1976] 2 MLJ 116 (High Court of Malaya, Malaysia).
• Vishaka v State of Rajasthan AIR 1997 SC 3011 (Supreme Court of India).
• Webb v EMO Air Cargo (UK) Ltd (Case C-32/93) [1994] ECR I-3567 (European Court of Justice).

Legislation

• Constitution (Amendment) (No 2) Act 2001 (Act A1130).
• Employment Act 1955, ss 41A and 69F.
• Employment (Amendment) Act 2022.
• Federal Constitution, arts 8(1), 8(2) and 160.
• Specific Relief Act 1950, s 41.

International Instrument

• Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13.

Other Materials

• Pekeliling Perkhidmatan Kementerian Pelajaran Malaysia Bil 1/2007.

Secondary Sources

• Foo Siew Li, ‘The Pregnant Pause’ (Skrine, 30 September 2014) Skrine Legal Insights, Issue 3/2014 accessed 7 August 2026.
• Ho Wen Hui, ‘Pregnancy Discrimination in the Workplace: The Trend of Decided Cases and Proposed Suggestions for Malaysia’ (2019) 8 HSLJ 18.
• Lim A, ‘Pregnancy Discrimination: The Need for Law Reform in Malaysia’ (Donovan & Ho, 21 March 2016) Donovan & Ho commentary on pregnancy discrimination law reform accessed 7 August 2026.
• Yow J, ‘All Employees Irrespective of Wages to be Covered under Amended Employment Act 1955 from 1 January 2023’ (Rahmat Lim & Partners, 6 September 2022) Rahmat Lim & Partners client alert on the Employment (Amendment) Act 2022 accessed 7 August 2026.