Beatrice Fernandez v. Sistem Penerbangan Malaysia & Anor
9 March 2005

 

On 11 March 2005, the Federal Court will decide whether to grant leave to appeal in a case in which the plaintiff, a former airline stewardess, was terminated by her employer, Malaysia Airlines, because she became pregnant and refused to resign from the company. The Joint Action Group Against Violence Against Women urges members of the media to be present at the Federal Court on Friday to hear the decision.

Ms. Beatrice Fernandez began working as a flight stewardess for Malaysia Airlines (MAS) in 1980. Eleven years into her service at MAS, and after promotion to the position of leading stewardess, Ms. Fernandez became pregnant. A 1988 collective agreement that governed the terms and conditions of her service required a female stewardess to resign on becoming pregnant and allowed the company to terminate her services should she not resign. After she became pregnant and refused to resign, the airline terminated her services in 1991.

Ms. Fernandez brought an action in the High Court in November 1991 seeking a declaration that various provisions in the collective agreement were invalid based on article 8 of the Federal Constitution and/or that her termination of service was void because it contravened section 14(3) of the Industrial Relations Act 1987 and section 7 of the Labour Act 1955. She also sought damages, interests, and costs. The High Court dismissed Ms. Fernandez's application in 1996 and the Court of Appeal dismissed her appeal in a judgment on 5 October 2004.

In its judgment, the Court of Appeal ruled that constitutional remedies were not available to Ms. Fernandez because the constitution only protects an individual's fundamental rights from actions by a public authority and there was no evidence to show that MAS is a public authority. Even if it could be considered a public authority, the Court ruled that neither article 8(1) nor 8(2) of the Federal Constitution, which provide equality for all citizens before the law, applied to the case. Article 8(1) does not apply because a collective agreement cannot be considered "law". Article 8(2), which has prohibited discrimination based on gender since it was amended in 2001, had not been amended at the time of Ms. Fernandez's termination and cannot be applied retrospectively.

On whether the provision in the collective agreement on termination by reason of pregnancy is void, the Court held that the Employment Act is not relevant to the particular provision.

As part of our advocacy to eliminate gender discrimination in the workplace, representatives from JAG-VAW is closely following the progress of this case and will be present at the Federal Court's decision on Friday.

JAG-VAW comprises Women's Aid Organisation (WAO), Women's Centre for Change, Penang (WCC), Women's Development Collective (WDC), MTUC - Women's Section, Sisters in Islam (SIS) and All Women's Action Society (AWAM).