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Sexual Harassment In The Workplace: Implications And Ways To Address It






The topic of sexual harassment in the workplace is still a prevalent topic to date. Research has shown that chronic stress caused by harassment at the workplace can contribute to mental and physical health problems. Workplace discrimination and harassment is a serious phenomenon.

 

This alert explores the various avenues provided for an employee to explore in the face of workplace sexual harassment and how employers can ensure these issues are eliminated.

 

Sexual Harassment

 

One of the more common forms of harassment faced by employees is sexual harassment.

 

The Section 2 of the Employment Act 1955 (EA 1955) defines sexual harassment as:

 

“Sexual harassment means any unwanted conduct of a sexual nature, whether verbal, 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 his employment.”

 

Through the Federal Court’s decision in Mohd Ridzwan Bin Abdul Razak v Asmah Binti Hj Mohd Nor [2016] MLJU 277 sexual harassment has been recognised by our courts. With the Malaysian Code of Practice on the Prevention and Education of Sexual Harassment in the Workplace 1999 (the Code of Practice) and the Employment (Amendment) Act 2012 in mind, the three main elements of sexual harassment are:

 

(i)              the occurrence of conduct that is sexual in nature;

 

(ii)             the conduct being unwanted; and

 

(iii)           the conduct is perceived as threatening the victim’s ability to perform her job.

 

In Ridzuan Yahya v. Air Asia X Bhd [2023] 4 ILR 175, the Industrial Court held among others that:

 

(a)            Whether or not the wrongdoer had the intention to sexually harass by physically touching the victim’s hand is immaterial as there was no evidence that she had welcomed the claimant's conduct.

 

(b)            The wrongdoer may have intended them to be just as "workplace fun" but they were inappropriate and wrong which now may give rise to an actionable tort of sexual harassment.

 

(c)      Passive tolerance must not be confused with voluntary acceptance.

 

(d)      The absence of a corroboration to the complaint does not defeat a complainant's allegation of sexual harassment.

 

 

Duties Of An Employer & Implications Of An Employer’s Reluctance To Address Complaints

 

In Shahrin Abdul Mutalib v Worldwide Fund for Nature Malaysia [2019] 2 LNS 2233 the learned Industrial Chairman, Andersen Ong Wai Leong stated:

 

“The Claimant's behavior and conduct toward COW7 and his other former female colleagues were foolish. He may have intended them to be just as "workplace fun" but they were inappropriate and wrong which now may give rise to an actionable tort of sexual harassment. Cheeky man needs to be wary and the days of the office Romeo are numbered. The Claimant has brought upon himself this misfortune by his own foolishness and indiscretion. He has crossed the line of decency at workplace and now he can only live to regret it.

 

‘The liberty to extend my hand stops where your nose begins’ is the saying that illustrates the idea of personal liberty of a man who thought he had the liberty to do freely what he likes on other people. Similarly, one's liberty to conduct himself in office place is always subject to the rules and regulations of the office and the affectability on his fellow colleagues. An example is that the Claimant's conduct and behavior in our present case affected COW7 more than COW2. That was why I have stated above, cheeky men have to be wary of their conducts or risks being accused of sexual harassment. Employer has a duty to protect its employees from any unlawful conduct including sexual harassment and to provide them with a safe and conducive place of work.”

 

The duties of an employer to protect their employees from sexual harassment is not only found in caselaw but in statute as well. Part XVA, which was introduced into the EA 1955 by the Employment (Amendment) Act 2012, sets out in Sections 81A to 81G, the mechanism for making complaints and imposes an obligation on the employer to inquire into a sexual harassment complaint.

Section 81A reads:

 

“For the purposes of this Part, "complaint of sexual harassment" means any complaint relating to sexual harassment made:

 

(i)       by an employee against another employee;

(ii)      by an employee against any employer; or

(iii)      by an employer against an employee.”

 

An employer is required by the EA 1955 to investigate any complaint of sexual harassment. It is important to note that complaints of sexual harassment may be made by a female against a male, by a male against a female, by a female against a female and a male against a male. Where the employer refuses to investigate the harassment claim, the employee may lodge a complaint with the Director General of Labour who will conduct an investigation.

 

If the Director General of Labour conducts an investigation and finds the complaint to be proven, then the employee has the right to terminate the employment contract without notice. The employee will be entitled to wages in lieu of notice, wages in lieu of annual leave and termination benefits as dictated under Section 60J of the EA 1955 and Employment (Termination & Lay-off Benefits) Regulations 1980.

 

Independent of the EA 1955, the courts have also been consistent in imposing an obligation on employers to act on complaints of sexual harassment. In Melewar Corporation Bhd v Abu Osman [1994] 2 ILR 807, the Industrial Court essentially held that an employer who had received information or complaint on sexual harassment has the duty to inquire into the allegations of misconduct. In a more recent case, the Industrial Court in Mogan @ Mohan Maniam v Sime Darby Auto Connexion Sdn Bhd [2021] ILRU 0117 stated:

 

“When the nature of allegation involves misconduct of sexual nature committed by one employee against another employee as in this case, the doctrine of proportionality of punishment must be weighed against the employer's overarching duty to provide a safe and conducive working environment for his employees (including keeping the work place safe from sexual harassment). This duty of the employer is stated in our Employment Act 1955 and it is also found in common law. This Court is of the view that the employer's duty to provide a safe and conducive working environment for his employees would override where the two collide, as in this case.”

 

Commentary

 

Albeit there being still room for improvement, our courts have shown their willingness to expand the perimeters of the law in order to ensure that wrongdoers do not get their way and escape their wrongdoings with a mere slap in the hand. Despite the ever-evolving landscape of this area, employees do have several avenues they may pursue in order to put a stop to workplace harassment faced in the workplace.

 

The obligation to prevent harassment at the workplace undisputedly extends to the employer. The employers possess the duty both is statute and common law to prevent such cases and act upon such complaints.

 

It is beneficial for both employers and employees to note the sentiment shared by the Court of Appeal in Freescale Semiconductor (M) Sdn Bhd v Edwin Michael Jalleh & Anor [2013] 6 MLJ 552:

 

“…One must expect in a multicultural society such as in this country, that the workplace is also multicultural. In such multicultural work environment, industrial harmony, one of if not the main object(s) of industrial relations, is achieved not by one acting on the norms acceptable to himself, but he must be sensitive to what is acceptable by others.”

 

26 April 2024

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