A Chinese Muslim eatery in Kuala Lumpur attracted criticisms from the public when news was published that it sacked its employee after a video of that employee wearing a cross necklace at work, went viral.
While most of the netizens were aghast at the action taken by the eatery against the employee, did you also wonder whether the termination of that employee under that circumstance was lawful? Or perhaps you wondered if that employee had a constitutional right to wear the cross to work?
Section 20(1) of the Industrial Relations Act 1967 (IRA) provides that:
“Where a workman, irrespective of whether he is a member of a trade union of workmen or otherwise, considers that he has been dismissed without just cause or excuse by his employer he may make representations in writing to the Director General [for Industrial Relations] to be reinstated in his former employment…”
Further, Article 11(1) of the Federal Constitution of Malaysia (FC) guarantees that every person (including a foreigner, if indeed that employee is one) has the right to profess and practise his religion. However, it is important to remember that this freedom of religion is not absolute as Article 11(5) of the FC does not authorize any act contrary to any general law relating to public order, public health or morality.
In the case of Hjh Halimatussaadiah Bte Hj Kamaruddin v Public Services Commission, Malaysia & Anor [1994] 3 MLJ 61, a clerk in the public service office was dismissed for wearing the ‘purdah’[1] during office hours, despite a government circular prohibited female civil servants from wearing attire covering the face during office hours. The highest court in Malaysia then i.e. the Supreme Court held that the clerk’s dismissal was lawful on grounds that among others, the freedom of religion under Article 11(1) of the FC is not absolute and that employee was aware that the government had issued a circular prohibiting the wearing of ‘purdah’ by a female officer in the public services during office hours. The Supreme Court also held inter alia that the use of the “purdah’ was not mandatory in Islam and therefore the government prohibition cannot be said to infringe her constitutional right under Article 11.
In the present scenario, it is not known whether the eatery had issued guidelines on employees’ dress code and whether the said employee was aware of such guidelines. It also appears that the employee was dismissed summarily without any due process e.g. a warning letter issued or a domestic inquiry conducted.
The employee in the video has 60 days from the dismissal to make representations under Section 20(1) of the IRA to the Director General for Industrial Relations[2]. If the matter proceeds to trial in the Industrial Court, these facts will be considered by the Industrial Court in determining whether there was unfair dismissal on the part of the employer.
Nonetheless, the dismissal of an employee ought to be the last resort considered by an employer given the consequences that it has on both the employer and the employee. In the event of doubt, it would be wise to seek for legal advice beforehand, to avoid facing the legal consequences as well as public criticism.
[1] A veil, cloth to hide a woman’s face
[2] Section 20 (1A) IRA
About the Author
Poon Wei Ying is a Senior Associate of XK Law who graduated with First Class Honours from the Cardiff University, United Kingdom. She believes in giving back to the society and that education can change a person’s life.
