Understanding the seriousness of sexual harassment
No matter in which industry or sector, sexual harassment in the workplace is widely reported and regarded as a serious misconduct that takes a toll on one’s dignity, regardless of its form. It affects the victim physically and mentally in ways that may:
- decreases one’s motivation to work
- creates anger and a hostile environment
- disrupts one’s daily life
- affects career and ability to perform at work
- mental health issues
Nowadays, when discussing sexual harassment, it does not exclusively involve only female victims, as male victims also reported that they had been sexually harassed at their workplaces. 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.
Fortunately, Malaysia has laws that prohibit sexual harassment in the workplace. This article provides general guidelines on what actions you can take if you have been a victim of sexual harassment at your workplace.
Definition of sexual harassment
Section 2 (g) of the Employment Act (Amendment) 2022 (“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 during their employment.”
Categories of sexual harassment
Based on the definitions provided in the Code, sexual harassment may be divided into two categories, namely:
- Sexual coercion refers to sexual harassment that affects the victim’s employment, e.g., when a superior tries to manipulate an employee into sexual favours in return for job perks like promotions or salary raises.
- Sexual annoyance: This kind of sexual harassment refers to those sexually related conduct that is offensive or hostile to the victim but unrelated to the employee’s job.
Examples of sexual harassment
Sexual harassment may include the followings:
- inappropriate and unwanted touching
- vulgar and lewd comments on someone’s appearance
- sharing and telling obscene jokes
- repeatedly asking someone out for dates or sexual favour
- promised gifts, good assessment and promotion if you accept sexual favour requests.
Real-Life Examples of Sexual Harassment Cases in Malaysian Workforce
In Mohd Ridzwan Bin Abdul Razak v Asmah Bt Hj Mohd Nor [2016] 4 MLJ 282, a male manager (Appellant) sued his female subordinate (Respondent) for defamation after she accused him of sexual harassment. A workplace committee found insufficient evidence of her claims. The manager then started a defamation case against the subordinate. She defended herself in High Court, countersuing for sexual harassment. The court rejected the manager’s claim and awarded the victim RM120,000 in damages.
Among the non-verbal sexual misconduct that the Appellant communicated to the Respondent were the followings;
- “Fuck you”;
- “Kalau cari husband cari yang beragama, bertanggungjawab, Macam I” (“If you want to find a husband, find one who is religious and responsible, just like who I am”);
- “Would you prefer a married man?”;
- “Another sob, typical homebred”; and
- You nak kahwin dengan I tak, I banyak duit tau” (“Would you like to marry me, I have lots of money”)
Not satisfied with the court’s findings, the Appellant appealed the case to the apex court. At the apex court, the question was whether there was a valid cause of action on the grounds of sexual harassment under the existing laws of Malaysia.
At this stage, the court agreed that the vulgar and sexually explicit words the Respondent complained about would be verbal sexual harassment, as guided by the Code of Practice on Prevention and Eradication of Sexual Harassment. It hence was sufficient to establish a tort of harassment.
The apex court dismissed the Appellant’s appeal and upheld the decision in favour of the Respondent.
Self-help legal procedures for victims
Section 81A of the Employment Act provides that any complaint of sexual harassment may be made in the following circumstances:
- by an employee against another employee;
- by an employee against an employer; and
- by an employer against an employee.
Section 81B: 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.
Consequences of overlooking complaints of sexual harassment
It would be an offence if the employer failed to do their duty to inquire about the complaint made by the employee as decided in Sitt Tatt v Flora A/P Gnanapragasam & Anor [2006] 1 MLJ 497, (“Flora’s case”). In Flora’s case, the company’s management was found guilty of neglecting their duty to act upon the employee’s complaint of sexual harassment.
The exact section also provides that the employer is not obligated to inquire about the complaint IF one of the following is met;
- the complaint of sexual harassment has been investigated, but no sexual harassment was proven; or
- the employer thinks that the complaint of sexual harassment is frivolous, vexatious, or made in bad faith
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. If they agree with the employer’s decision to dismiss the investigation, they may inform the complainant and classify the case as no further action (“NFA”).
Section 81C suggests that the employer may take any of the following actions against the harasser if the allegation of harassment is proven:
- dismissing their employment without notice; or
- downgrading their employment; or
- Imposing any lesser punishment that the employer thinks is fit and reasonable, and if it involves a suspension of wages, the suspension shall not exceed two weeks.
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 subject.
According to Section 81D (3), for any complaint of sexual harassment made by an employee against a sole proprietor employer, the Director General of Labour 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.
Code of Practice on Prevention and Eradication of Sexual Harassment
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 to prevent and eradicate sexual harassment in the workplace.
The Code includes sexual harassment as any unwanted conduct of a sexual nature, either in the form of verbal, non-verbal, visual, psychological, or physical harassment. Harassment is seen as imposing a sexual condition on employment, causing offence or humiliation, or threatening well-being, even if it doesn’t directly affect the career.
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.
Industrials Relations Act 1967
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 making a complaint about sexual harassment 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 appearance and how she never smiled at her employer.
It was ruled that if a complainant was forced to resign after being a victim of sexual harassment at their workplace, the resignation could amount to constructive dismissal. Relying 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.
The Communications and Multimedia Act 1998
Section 233 of the Act mentions that a person commits an offence if they do the followings:
- (ii) initiates the transmission of any obscene, indecent, false or offensive comment, request, suggestion, or other communication 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 imprisonment for a term not exceeding a year or both and shall also be liable to a further fine of RM1,000.00 for every day 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.
Key Takeaways
- 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.
- Employers must play an essential role in ensuring a safe workplace by implementing strict internal policies on sexual harassment and taking active roles in conducting an impartial investigation.
- Employers who fail to act against harassment in the workplace can face serious legal consequences.
- Sexual harassment is a form of workplace bullying, and it is time for everyone to act on their roles to create a healthy work environment free from harassment.
