KUALA LUMPUR, May 21 — An autistic contract counsellor in the Ministry of Health (MOH) has taken legal action against the Public Services Commission (SPA) and the government for rejecting his application for a permanent position – allegedly due to his disability.
Ch’ng Ba’o Zhong – a 31-year-old who has been working as a psychology officer (counsellor) under contract in MOH in Penang since October 2020 – contends that his status as a disabled person, via his OKU card, led to discrimination in his attempt to apply for a permanent position through SPA’s Sistem Pendaftaran Pekerja (SPA-9) portal.
Ch’ng’s judicial review application, filed in the High Court in Penang last May 3, accuses the SPA and the government of violating Article 8 of the Federal Constitution and the Persons with Disabilities Act 2008 (Act 685).
Ch’ng is among many licensed counsellors hired directly by MOH during the Covid-19 pandemic to address the surge in mental health cases.
These counsellors, including Ch’ng, are on contract terms without benefits like increments, EPF (Employees’ Provident Fund) or Socso (Social Security Organisation) contributions, or housing allowances. Their contracts are renewed annually, though many contracts have either expired or are expected to end soon.
Ch’ng is seeking for the High Court in Penang to grant leave for his judicial review application for a declaration that the respondents, in considering any application for employment in the public services by persons with disabilities, must act consistently with Article 8(1) of the Federal Constitution and Section 29 of the Persons With Disabilities Act 2008.
Article 8(1) of the Federal Constitution states that all persons are equal before the law and entitled to the equal protection of the law. Section 29 of Act 685 states that persons with disabilities shall have the right to access to employment on equal basis with persons without disabilities.
Ch’ng also seeks leave for court orders directing SPA to either grant him the position of “Pegawai Psikologi” (S41) within a specified timeframe, or alternatively, to conduct an online interview and allow him to undergo a psychometric examination for the same position.
Additionally, he demands assurance that he won’t face discrimination based on his disability in any future applications for the same position.
Ch’ng is represented by Surendra Ananth Advocates & Solicitors. After today’s case management, lawyer Surendra Ananth told CodeBlue that the Attorney-General’s Chambers (AGC) is objecting to leave on the basis that the SPA’s decision cannot be reviewed by the courts.
The High Court in Penang has scheduled July 9 for the leave hearing.
Level 1 Autism: Mildest Form of ASD
According to court documents, Ch’ng has autism spectrum disorder (ASD) and was diagnosed with DSM-5 299.00 (F84.0) autism, level 1. This means that Ch’ng requires support for both social communication and restricted repetitive behaviour. However, he does not have any intellectual or language impairment.
Level 1 is the mildest form of ASD and is sometimes referred to as “high-functioning autism”.
Ch’ng applied to the Welfare Department in Penang to be registered as an “Orang Kurang Upaya” (OKU, or person with disabilities), and his application was approved on June 22, 2021, granting him an OKU card.
The World Health Organization (WHO) describes ASD as a diverse group of conditions that are characterised by difficulties in social interaction and communication, along with atypical patterns of activities and behaviours. The abilities and needs of autistic individuals vary, with some being able to live independently while others require lifelong care and support.
Globally, approximately one in 100 children is estimated to have autism.
Court filings reveal that Ch’ng initially accepted a contract position as an independent contractor with MOH, serving as a psychology officer at Klinik Kesihatan Daerah Barat Daya in Jalan Air Putih, Penang.
His current contract extends until August 2, 2025. Additionally, he works as a counsellor and centre manager at REN Counseling Center in Penang.
Ch’ng, a registered counsellor with Lembaga Kaunselor, holds a Bachelor of Social Science (Hons) Psychology degree from Universiti Tunku Abdul Rahman (UTAR) and a Master’s in Counseling from Universiti Sains Malaysia (USM).
Between October 2020 and February 2024, Ch’ng counselled a total of 1,043 patients and logged 2,003.5 hours of counselling without any complaints.
SPA’s HR Department Allegedly Rejected Application ‘Due to OKU Card Status’
In 2020, shortly after securing his contract position with MOH, Ch’ng began applying for a permanent position as “Pegawai Psikologi” (S41) using the SPA-9 portal. He passed the initial stage, but was unsuccessful in subsequent tests in 2021.
Later in 2021, he updated his online account to include his status as a disabled person, as he had obtained an OKU Card.
On December 28, 2023, the MOH announced new positions, including one Ch’ng had applied for at Klinik Kesihatan Air Putih in Balik Pulau, Penang. However, on February 8, 2024, Ch’ng was surprised to find his application had not passed the first stage.
Despite passing this stage in 2021 and being called for an interview, he was now rejected, despite no changes other than declaring his OKU card status.
Ch’ng contacted SPA’s human resources department and was allegedly twice informed that his application was rejected “due to his OKU card status”. He later discovered that less academically qualified peers had passed the first stage.
Ch’ng listed six candidate names who passed the first stage of the application, with four only having a Bachelor’s degree in counselling, and two having a Master’s in counselling.
Ch’ng argued that he was not only more academically qualified than some of his peers, who all obtained Bachelor’s degrees between 2017 and 2022, but he also had more work experience. Ch’ng earned his Bachelor’s degree from UTAR in 2012 and his Master’s from USM in 2018.
On April 2, Chng submitted an inquiry to SPA through its online inquiry mechanism.
In response, SPA initially stated that psychology was not among the specified specialisations set by MOH, namely: psychology counselling, counselling, counselling (Master in Counselling), and counselling (drug abuse).
Ch’ng then clarified his Master’s in Counseling qualification. SPA later provided a different response, listing factors including disability for consideration.
Ch’ng contends that the decision violates Article 8(1) of the Federal Constitution and Section 29 of the Persons With Disabilities Act 2008. He argues that the rejection was “unreasonable, irrational, and disproportionate”, as his disability doesn’t affect job performance, and his qualifications were overlooked.
“In any event, the decision (rejection of application) is excessive in that the applicant did not even pass the first stage,” Ch’ng said in a court document.
He further argues that the decision breached natural justice, as SPA allegedly made it based on his disability without giving him an opportunity to be heard.
