Can you terminate an employee during her pregnancy in Malaysia?
We’ve been asked this question numerous times by many employers in Malaysia. Can you terminate an employee during her pregnancy? Well, before we answer that, let’s look what the law says in regards to this.
Section 44A of the Employment Act 1955 which was introduced effective 1 April 2012 states that the whole Part IX on maternity protection applies to EVERY female employee engaged under a contract of service irrespective of her wages. In other words, the provisions in the Employment Act 1955 in relation to maternity protection apply to all female employees.
Anyways, if you are still wondering, the law does not prohibit you from terminating your employee during pregnancy. It only prohibits the termination during maternity leave. So as an employer or HR, you need to understand the difference between “Pregnancy” and “Maternity”.
According to the Merriam-Webster Dictionary, pregnancy means having a baby or babies developing inside the body and maternity means the state of being a mother. A lot of employers and HR often thought that both are the same and that terminating a female employee during her pregnancy even if the female has found to have committed a major misconduct (after going thru the due process) is a big ‘NO’ and is deemed as an act of discrimination towards women.
So, let us clear the air a little bit. Can you terminate a pregnant female employee? Answer – It’s “YES” but with “just cause and excuse”. Before terminating her contract of employment, you must have showed good grounds for the termination and cannot merely rely on the notice clause to terminate the employment. Termination based solely on the notice clause could result in you and your company facing a claim for unfair dismissal.
HOWEVER (and this is a little bit technical), one thing that all employers and HR must take note and need to be aware of is if the female employee has been in employment for 90 days and if she has worked for at least one day after her fifth month of pregnancy, then she will be entitled to 60 days maternity allowance even if her employer terminates her on grounds of misconduct. Is she hasn’t fulfilled both the conditions stated above, then the need to pay the maternity allowance is eliminated.
If you have any questions, just leave your comments below. Thanks!