Court rules no gender bias in workers’ retirement age (TMI)

Court rules no gender bias in workers’ retirement age

UPDATED @ 03:07:25 PM 21-03-2012
By Clara Chooi
March 21, 2012

PUTRAJAYA, March 21 — The Court of Appeal today dismissed an application by female workers claiming gender discrimination in being forced to retire earlier than male colleagues.

A three-man bench led by Datuk K. N. Segara upheld a 2010 High Court ruling on the 11-year-old case, which had overturned an initial Industrial Court’s 2008 decision in favour of the eight plastic industry workers.

They were forced to retire in June 2001 after the company, Guppy Plastic Industries, enforced a then-new employee handbook rule stipulating a retirement age of 50 for female employees and 55 for male employees.

When reading the panel’s judgement before the court today, Segara discarded the appellants’ argument for discrimination, saying the case was a straightforward matter based on facts.

The panel agreed that the Industrial Court had in 2008 erred in its judgement when it failed to take into consideration relevant factors presented before it, such as the respondent’s submission of several Collective Agreements (CAs) from other firms in the same industry that stipulated the same retirement ages for both male and female employees.

“It is our unanimous view that the appeal should be dismissed.

“We are entirely in agreement with the High Court judge that the Industrial Court had erred by failing to take into consideration the relevant factors and taking into consideration the irrelevant factors,” he said.

The Industrial Court, Segara added, had failed to consider whether it was “fair and reasonable” for Guppy Plastic to “adapt to industry norms for the retirement ages of male and female employees as implemented by other companies”.

The group of workers, upon hearing the decision, stood up to leave the courtroom before the end of the panel’s judgement, as a sign of protest.

The appellants’ counsel, Ragunath Kesavan had earlier raised Article 8(2) of the Federal Constitution and the Committee on the Elimination of Discrimination against Women or “Cedaw” convention of which Malaysia is a member, to argue his case for gender discrimination.

He told the court that during the hearing before the Industrial Court, Guppy Plastics had not furnished medical proof or a report from the Department of Occupational Safety and Health (DOSH) to support its argument that women above 50 are physically unfit to resume their duties.

The Industrial Court, he added, had then decided there was discrimination in the difference between the retirement ages for men and women and said the burden laid on the company to prove their reason for the retirement policy.

Ragunath added that it was also discovered that upon the retirement of its employees, Guppy Industries had “re-hired” 90 per cent on an annual contract basis.

This, he said, meant the “re-hired” workers would no longer be entitled to the benefits offered to them when they were full-time employees.

“There is a big difference when you take away a person’s right as a permanent employee than a contract worker,” he pointed out.

The respondent’s counsel later told the court that the matter did not involve gender bias, pointing out that at the time the company’s retirement policy was introduced, Article 8(2) of the Federal Constitution had not yet been amended to include the word “gender”.

“There is no government guideline on how to fix a retirement age. Neither is it against public policy. So the company did what’s best, which is to refer to industry practices,” the counsel said.

The appeal was dismissed with costs at RM10,000.

Speaking to reporters later, Ragunath expressed disappointment, saying the court should have been at the forefront of standing up for constitutional rights.

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