IT is the duty of every person to respect another’s dignity and esteem. Dressing appropriately and safeguarding chastity are important for Muslims. The criterion of modest dressing for women in the presence of strangers and relatives who are not “mahram” is contained in the Quran.
In some Muslim countries, such as Saudi Arabia and Iran, it is compulsory for women to wear the hijab at the workplace, while in Eygpt, Jordan, Syria, Algeria and Bosnia, it is optional.
However, in some Muslim countries, the majority of women prefer to wear the hijab, like in Yemen and the United Arab Emirates.
Similarly, in Malaysia, it is optional for Muslim women to wear the hijab at the workplace. However, in Islamic organisations and institutions of higher learning, it is compulsory for female staff and students to wear it.
Discrimination based on religious beliefs in the workplace, including the prohibition of wearing religious clothing, such as the hijab among female Muslim employees, has been addressed by the United States’ Equal Employment Opportunity Commission.
In Europe, the European Court of Justice has ruled that the barring of Muslim women from wearing Islamic headscarf at work does not constitute direct discrimination.
In Malaysia, the rule barring Muslim women wearing hijab from working at the front line of certain hotels has sparked a debate. Some have contended that discrimination on the basis of religious dressing is against the Federal Constitution’s Article 3.
It must be emphasised that a veil covering the full face, or niqab, is not allowed among female employees at the workplace, based on the decision of the Supreme Court in Hjh Halimatussaadiah Bte Hj Kamaruddin v Public Services Commission, Malaysia & Anor .
In this case, the court held inter alia that the prohibition against the wearing of attire covering the face by female civil officers at the workplace does not violate the appellant’s constitutional right to profess and practise her Muslim religion.
In this case, the appellant, a clerk in the Perak state legal adviser’s office, was dismissed after she persisted in wearing the niqab at the workplace in contravention of a government circular that prohibited female civil servants from wearing attire covering the face during office hours. The prohibition is only in relation to niqab and does not extend to hijab, and thus, no employer should indiscriminately bar female Muslim employee from wearing hijab at the workplace.
The Industrial Court has ruled that employees must be protected from victimisation, harassment and discrimination.
The gender discrimination claims can be based on Section 20(1) of the Industrial Relations Act 1967.
Dismissal tainted with unfair motives, having the element of discrimination, victimisation, capricious or mala fide actions that are incorporated under unfair labour practices would come within the scope of Section 20(1).
The claim for constructive dismissal and unlawful gender discrimination is intertwined.
The requirement of bona fide is essential in the dismissal. If the dismissal or termination is as a result of discrimination, the Industrial Court can interfere and to set aside such dismissal. The company must therefore be committed to a discrimination-free work environment.
PROFESSOR DR ASHGAR ALI ALI MOHAMED
Ahmad Ibrahim Kulliyyah of Laws
International Islamic University Malaysia