Intro
Sexual harassment has been identified as a present barrier to the professional success of both men and women. Studies have shown that between 35% and 53% of working women have experienced some form of sexual harassment at work. In this discussion, we will delve into the realms of sexual harassment in the workplace.
Section 2 of the Employment Act 1955 states that sexual harassment also includes any unwanted conduct that is sexual in nature, whether it is by way of physical, verbal or gestures, directed at another person, and that conduct is said to be offensive or poses a threat to their well-being during work. In other words, this means conduct that might be, on reasonable grounds, be perceived by the recipient as having a sexual nature during their employment, as stated in the Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace in 1999.
Mohd Ridzwan bin Abdul Razak v Asmah Binti Hj Mohd Nor [2016] 4 MLJ 282
This landmark case led to the introduction of this tort. In this case, the complainant alleged that her general manager had sexually harassed her, but due to a lack of proof, a mere warning was issued to the general manager. Upon this, the general manager lodged a complaint against the complainant requesting disciplinary action to be taken against her for lodging the said sexual harassment complaint, which was dismissed.
The general manager then brought an action against the employee in the High Court for defamation, where it was ruled that as the general manager had failed to prove the elements of defamation, his claim was therefore dismissed. With regards to the purported sexual harassment, the court found that the incidents that had transpired were true, and there was evidence to show that the general manager had uttered vulgar words and statements to the employee directly. However, the court did not state whether sexual harassment was a valid claim under the law.
Dissatisfied with the decision, the general manager then appealed to the appellate court. The court here found that the words that were uttered by the employee indeed had defamatory elements, but they were made within a formal complaint to the CEO of the company, and hence, they were made as part of the proper mechanism of a complaint from an employee to their employer. The court, after dealing with the surrounding circumstances, decided that there was enough evidence to show that the comments that were vulgar and sexual were made towards the employee and that this had breached the Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace 1999.
However, the court did not specifically state that sexual harassment was a form of claim in law but parked it under tort law. The court stated that when the sexual harassment was so serious that it caused psychological harm to the victim, it may fall under the tort of intentionally causing nervous shock to the victim. The court found that as the employee was someone who was vulnerable and was even diagnosed with depression after the said incident, the circumstances of this case warranted that it fell under tort law instead.
The case was further brought to the apex court, premised on whether there was a valid cause of action for sexual harassment.
At that point in time, there was no law that allowed sexual harassment survivors to bring a case to court. However, the court decided to take judicial cognisance of the issue and created a tort of sexual harassment.
The court, upon studying the Code and also the Employment Act, found that there was no cause of action for sexual harassment and therefore decided to import the tort of sexual harassment into our legal system. The court also found that there was in fact no sufficient evidence that the employee had suffered any form of psychological harm from the actions of the general manager, as there was no physical harm suffered by the employee, and that the threshold for that was higher.
The implication of this case is that now someone who feels that they have been sexually harassed in their workplace can sue for sexual harassment.
What is required to establish sexual harassment has taken place?
The current elements that are required in order to establish sexual harassment are:
- there must be conduct that is sexual in nature
- the conduct must be one that is unwanted, and
- the victim feels that the conduct has threatened their ability to perform their job.
It must be noted that even with such laws, cases of sexual harassment continue to occur in the workplace. The main reason is the fact that the victims are too afraid to step up and bring an action against such perpetrators for fear of being shunned or of losing their jobs.
However, in accordance with the Employment (Amendment) Act 2022, the law has been changed to make it an obligation for employers to actually take additional precautions to avoid sexual harassment in the workplace by displaying a notice to promote awareness of this issue. Failure to do so would make the employer liable to a fine of up to RM50,000.
Further, in 2023, the Public Services Commission issued a list of disciplinary offences that constitute sexual harassment, and even addressing a colleague as “sayang” is now considered as sexual harassment in the workplace.
Anti-Sexual Harassment Act 2022
In order to curb the rising cases of sexual harassment in Malaysia, the long-awaited Anti-Sexual Harassment Act 2022 has been passed. The main purpose of this Act is to provide a redress mechanism for a person who has been sexually harassed. The Act has also established a Tribunal for Anti-Sexual Harassment to hear complaints on sexual harassment.
However, the handling of such cases by the Tribunal differs from the internal handling by an employer. Usually, when the investigation of such sexual harassment cases happens internally, the employer will generally initiate a disciplinary proceeding.
Lim Po Seng v Resort Villa Gold Course Berhad (Award No. 471 of 2023)
In the case of Lim Po Seng v Resort Villa Gold Course Berhad (Award No. 471 of 2023), the court stated that an employee who was dismissed due to a sexual harassment complaint was unfairly dismissed. The reason was that the court found that there was insufficient evidence to actually dismiss the said employee.
This case is significant as it emphasises the importance of the employer taking the necessary steps and conducting an investigation to ensure that the issue of sexual harassment is dealt with correctly, instead of merely believing one party over another.
Nevertheless, even with all the laws in place to prevent or counter sexual harassment issues in Malaysia, there are still shortcomings in this tort. The main deficiency is that generally, only monetary compensation is available to the victim, which clearly is not a sufficient form of deterrent for those who are able to pay the compensation. This limited remedy is said to not be survivor-centric as most victims are not looking for monetary gain.
Conclusion
In conclusion, the above are some of the recent amendments to the current sexual harassment laws in Malaysia. These amendments are commendable as they help to counter sexual harassment issues in the workplace. However, such amendments may remain limited in terms of employer obligations and responsibilities.
There is still no legal obligation on employers to actually implement an anti-sexual harassment policy in their workplaces. It is hoped that such implementation may be made possible by upcoming amendments to such laws.
References:
- Section 2 of the Employment Act 1955
- Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace, 1999
- Anti-Sexual Harassment Act 2022
