Unfortunately sexual harassment has become more widely reported these days, and is rightly categoried as serious misconduct, no matter in what form it takes. It affects the victim physically and mentally, and when it goes unpunished, the harasser will likely continue to harass one victim to another.
Nowadays, when talking about sexual harassment, it does not exclusively involve only female victims, as the number of reports on male victims who have been sexually harassed at their workplaces has shown a rising number over the past few years. Statistically speaking, a survey conducted by the Women’s Aid Organization (WAO) in Malaysia reported that 62% of 1,010 Malaysian women had experienced sexual harassment at their workplace.
This article provides guidelines on what an employee can do if they have been a victim of sexual harassment at their workplace.
Section 2 (g) of the Employment Act (Amendment) 2012 (“the Act”) defines sexual harassment as the followings:
“Any unwanted conduct of sexual nature, whether verbal or non-verbal, visual, gestural or physical, directed at a person which is offensive or humiliating or is a threat to his well-being, arising out of and in the course of their employment.”
Sexual harassment may include inappropriate and unwanted touching, vulgar and lewd comments on someone’s appearance, sharing and telling obscene jokes, and repeatedly asking someone out for dates or sexual favour despite being rejected in the past.
Meanwhile, the Code of Practice on Prevention and Eradication of Sexual Harassment in the Workplace 1999 (“the Code”) was established to provide guidelines to employers on establishing in-house mechanisms at the enterprise level to prevent and eradicate sexual harassment in the workplace.
The Code includes sexual harassment as any unwanted conduct of a sexual nature having the effect of verbal, non-verbal, visual, psychological, or physical harassment that might, on reasonable grounds, be perceived by the recipient as placing a condition of a sexual nature on their employment, offence or humiliation, or a threat on their well-being but has no direct link to their career.
Based on the definitions provided in the Code, sexual harassment may be divided into two categories, namely:
Unfortunately, the Code only acts as a guideline to Malaysian employers without it having any legal force. In short, employers may or may not choose to adopt the Code in their organisation as it does not have any force of law.
In this case, the Appellant, a male manager, filed an action against the Respondent, his female subordinate, for defamation because the latter had filed a complaint of sexual harassment against her by the Appellant. A committee was set up at their workplace to investigate the complaint. However, there was a lack of evidence found to establish her claim. The former later initiated the defamation suit against the Respondent. The Respondent filed her defence in the High Court and inserted a counterclaim of the tort of sexual harassment against the Respondent. The court dismissed the Appellant’s claim and awarded RM120,000 as damages to the Respondent.
Among the non-verbal sexual misconduct that the Appellant communicated to the Respondent were the followings;
Not satisfied with the court’s findings, the Appellant appealed the case to the apex court. At the apex court, the question to be decided was whether there was a valid cause of action in civil claims on the grounds of sexual harassment under the existing laws of Malaysia. In Malaysia, the tort of sexual harassment at the time the case was filed was yet to exist as the amended Employment Act 1955 only came into force on 1 April 2012.
The court went over the matter and decided it was time to import the tort of sexual harassment into the Malaysian legal system. After considering a few English and Singaporean cases, the court agreed that the vulgar and sexually explicit words complained of by the Respondent clearly would be sexual harassment emanating from verbal harassment, as elucidated in the Code hence was sufficient to establish a tort of harassment.
The apex court dismissed the Appellant’s appeal and upheld the decision made in favour of the Respondent.
The amendment to the act did not provide the rights of the victim and liabilities of the harasser. It, however, provides for how employers should deal with the complaints of sexual harassment made by the worker.
Section 81A of the Act provides that any complaint of sexual harassment may be made in the following circumstances:
Section 81B stated that the employer must investigate the complaint of sexual harassment made by the employee within 30 days after the complaint was made. They must explain the refusal in writing if they refuse to do so.
It would be an offence if the employer failed to dispose of their duty to inquire on the complaint made by the employee as decided in Sitt Tatt v Flora A/P Gnanapragasam & Anor [2006] 1 MLJ 497, (“Flora’s case”) whereby the company’s management was found to be guilty of neglecting their duty to act upon the employee’s complaint on sexual harassment.
The exact section also provides that the employer is of no obligation to inquire about the complaint if one of the following is met;
However, if the complainant is dissatisfied with their employer’s finding, they may direct the complaint to the Director General of Labour. The Director may require the employer to conduct the inquiry as complained with the power given to him. If they agree with the employer’s decision not to run the investigation, they may inform the complainant and classify the case as no further action (“NFA”).
If the allegation of sexual harassment is proven, Section 81C of the Act suggests that the employer may take the following action against the harasser.
Suppose the harasser is a third party, i.e. client or customer. In that case, it is recommended that the harasser be brought to an appropriate disciplinary authority to which the person is a subject.
According to Section 81D (3), for any complaint of sexual harassment made by an employee against a sole proprietor employer that the Director General of Labour receives, the Director shall inquire on the complaint by themselves. Suppose such inquiry by the Director General further proves that there was sexual harassment made; the complainant may terminate their service contract without notice and still be entitled to wages, termination benefits, and indemnity.
Again, in Flora’s case, the court found that the Appellant Flora was constructively dismissed by her employer when she was forced to write her resignation letter after escalating a sexual harassment complaint to her higher-ups. Her employer harassed Flora multiple times when she was invited to spend the night with her superior in a hotel. She also received obscene comments about her dress and how she never smiled at her employer.
It was held that if a complainant was forced to resign due to the occurrence of sexual harassment against her, the resignation could be deemed as constructive dismissal. In reliance on Section 20 of the Industrials Relations Act 1967, anyone who thinks they have been unfairly dismissed may lodge his case to the Director General of Industrial Relations within 60 days of his termination.
In another decided case of Melawar Corporation v Abu Osman, the Respondent was found guilty of sexually harassing his colleague and was dismissed by the Appellant company. Respondent brought the case before the Industrial Court on the ground of constructive dismissal. Still, the court reinstated the decision of the Appellant to dismiss the Respondent and decided that he was fairly dismissed from his employment due to his misconduct.
Section 233 of the Act mentions that a person commits an offence if they do the followings:
(ii) initiates the transmission of any comment, request, suggestion, or other communication which obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person
If found guilty of the offence, the harasser shall be liable to a fine not exceeding RM50,000.00 or to imprisonment for a term not exceeding a year or to both and shall also be liable to a further fine of RM1,000.00 for every day which the offence is continued after conviction.
Therefore, any employee who feels they have been sexually harassed through electronic means such as email or text messages may lodge a report to the police authority by relying on the above sections.
In the previously mentioned case of Mohd Ridzuan v Asmah Hj Mohd Nor, the Federal court commented that no one should tolerate sexual harassment as it lowers the dignity and respect of the person who is harassed. As many victims do not come out to report what they have experienced as they are afraid that it will affect their career, employers must play an essential role in ensuring a safe workplace by implementing strict internal policies on sexual harassment and taking active roles in inquiring about any complaints made about sexual harassment. It is time for employers and employees to act on their role to create a healthy work environment free from harassment.
