Work discrimination: Historic decision on disabled rights

 

The disabled community applauds judge Quay Chew Soon for his historic Jan 16 decision on the right to freedom from discrimination in employment for persons with disabilities (PWD).

This decision upholds the constitutional right of all Malaysians under Article 8 (1) of the Federal Constitution, regardless of ability, to seek public sector employment.

Ch’ng B’ao Zhong (B’ao), a counsellor on contract since October 2020 with the Health Ministry has a Master’s in Counselling Psychology and works at the Daya Barat District Health Office in Penang.

In 2021, B’ao applied for a permanent position as a psychology officer. He fulfilled the ministry’s academic criteria, passed the various screening stages, and was shortlisted for an interview but was not selected after that.

In 2022, he was issued a PWD card based on his diagnosis: autism spectrum disorder, level 1. His disability does not affect his work performance, as evidenced by the over 2,000 hours of counselling provided to over 1,000 patients.

In mid-2022, B’ao updated his disability status in his online government account with the Public Services Commission (PSC) employee registration system portal.

In December 2023, when a vacancy arose, B’ao reapplied for the same permanent position. However, he was not shortlisted for an interview; the PSC portal indicated B’ao did not meet the academic criterion for the position.

On many occasions, B’ao contacted the Human Resources Department of the PSC for clarification and was given a verbal indication that he failed to be shortlisted because he was a PWD card holder.

Aggrieved, B’ao applied to the Penang High Court for a judicial review seeking a declaration that he had been discriminated against on the grounds of disability during the process of accessing employment in a public sector permanent position.

The basis for seeking the declaration was on the grounds that the PSC decision was not consistent with Article 8 (1) of the Federal Constitution and Section 29 of the PWD Act 2008 which guarantees equal access to employment.

Judgement

On Jan 16, Quay ruled in favour of B’ao and declared as follows:

1. The PSC and the government, in considering any PWD application for employment in the public sector, must act consistently with Article 8 (1) of the Federal Constitution and Section 29 of the PWD Act.

2. A direction to quash the decision of the PSC and the government in rejecting B’ao’s application for the position of psychology officer, which was communicated to B’ao on Feb 8, 2024.

3. B’ao be granted an online interview and be allowed a psychometric examination for his application for the position.

4. The PSC and the government must ensure that B’ao is not discriminated against on the basis of disability in any of his future applications for the psychology officer position.

Breach of CRPD

The judge also found that there was a breach of legitimate expectations concerning the Convention on the Rights of Persons with Disabilities (CRPD), which prohibits discrimination against PWDs.

This case highlights the many discriminatory barriers that PWDs face in Malaysia and it is time for the government to urgently amend Article 8 (2) of the Federal Constitution to expressly prohibit discrimination on the grounds of disability.

Similarly, urgent and comprehensive amendment of the PWD Act is essential to align it with the CRPD that Malaysia ratified in July 2010.

All Malaysians with disabilities have a legitimate right to, and expectation of, not being discriminated against.

We commend B’ao’s courage in pursuing this legal challenge and his counsel, Surendra Ananth, for his tireless and passionate advocacy, and commitment to disability justice.

We thank the Malaysian Bar, represented by Shahareen Begum, for supporting this case as amicus curae.

Signatories:

Harapan OKU Law Reform Group members:

Dr Amar-Singh HSS
Anit Kaur Randhawa
Mary Chen
Meera Samanther
Sangeet Deo Kaur
Yuenwah San

- Mkini

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The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.