Sexual harassment in the workplace is not a new problem, and Malaysia has introduced many laws to tackle the issue; the latest being the introduction of the Anti-Sexual Harassment Act 2022.
This article provides a guide to the relevant laws related to this critical topic that all employers and employees must take note of.
Sexual Harassment as A Misconduct
In 2012, the Section 2 of the Employment Act 1955 included the definition of sexual harassment as any unwanted behavior of a sexual nature that is offensive, humiliating, or threatening, which arises out of and in the course of the employment. This includes verbal, non-verbal, visual, gestural, or physical actions.
Cases like Mohd Nasir Deraman v Sistem Televisyen Malaysia Berhad (TV3) [2010] 2 LNS 0480 and Loganathan Maniam v Murphy Sarawak Oil Co. Ltd [2020] 2 ILR 275 further affirmed that sexual harassment is a major misconduct which warrants the harasser’s dismissal.
Employers are advised to issue the accused harasser a show cause letter, seeking him or her to provide his/her explanation in response to the allegations raised. If the explanation provided is unsatisfactory, Employers can either proceed with further investigation by way of domestic inquiry (not mandatory) or decide on the harasser’s guilt and appropriate punishment.
Constructive Dismissal Due To Sexual Harassment:
Now, sometimes the failure of the employer to act in the face of a sexual harassment complaint can lead to a legal suit in its own hands.
In Sitt Tatt Bhd v Flora Gnanapragasam & Anor [2005] 7 CLJ 522, the victim had suffered constant sexual harassment by her immediate supervisor, but when she complained to her employer, her employer failed to act and allowed her to continue to work with the supervisor. Feeling unsafe, she resigned and sued the employer for constructive dismissal.
At the end, the High Court affirmed the Industrial Court’s decision in finding that the victim was indeed constructively dismissed and that she was to be awarded RM48,600 in back wages. The Courts held that the employer’s failure to address her sexual harassment complaints resulted in the victim’s involuntary resignation.
More recently, on 29.07.2024, the Industrial Court awarded a victim RM158,760, comprising of RM136,080 in back wages and RM22,680 in compensation in lieu of reinstatement for the constructive dismissal on grounds of sexual harassment, which included a GLC CEO’s “massage me” “joke”.
Employer’s Statutory Duties Under the Employment Act
Other than industrial relations jurisprudence, there are further statutory obligations that employers must be aware of.
Section 81A of the Employment Act 1955 classifies sexual harassment complaints can be made by an employee against another employee, by an employee against an employer, or by an employer against an employee.
Under Section 81B of the Employment Act 1955, the employers shall investigate these complaints thoroughly. If an employer refuses to investigate, proper reasons in writing must be given to the complainant within 30 days after receipt of the complaint. However, the employer may refuse to inquire into any complaint of sexual harassment if the complaint has been inquired into before or if the complaint made is frivolous, vexatious or in bad faith.
When an employer refuses to investigate, the complainant may refer the matter to the Director General. The Director General will then decide whether to direct an inquiry or agree with the employer’s decision not to investigate.
If the employer conducts an inquiry and finds it to be a valid complaint, employers can take disciplinary action against the offender as prescribed under Section 81C of Employment Act 1955, which includes to dismiss the employee without notice, downgrade or demote the employee’s position, or impose a lesser punishment deemed appropriate, such as suspension without wages for up to two weeks. If the offender is not an employee, the employer should recommend that the individual be brought before the appropriate disciplinary authority.
That said, employers who fail to investigate or act on sexual harassment complaints can be fined up to RM50,000 upon conviction under Section 81F of the Employment Act 1955.
Finally, as per Section 81H of the Employment Act 1955, Employers are statutorily required to display a notice to raise awareness on sexual harassment at the workplace. For example the below:
Sexual Harassment Can Also Be A Criminal and Civil Case
Other than seeking recourse through or against the employer, a victim can also seek justice through the police or the civil courts.
Sexual harassment can be prosecuted under Section 509 of the Penal Code, which entails punishment of imprisonment for up to five years, a fine, or both.
Further, since the Federal Court case in Mohd Ridzwan Abdul Razak v. Asmah Hj Mohd Nor [2016] 6 CLJ 346, victims can now initiate a civil suit claim against the harasser for the sexual harassment and to demand for monetary compensation, amongst others.
Anti-Sexual Harassment Act 2022 and its Tribunal’s First Award
Finally, as above, on 08.03.2024, the Anti-Sexual Harassment Act 2022 came into force in full. Through the Anti-Sexual Harassment Act 2022, an Anti-Sexual Harassment Tribunal was established to hear and decide sexual harassment complaints with the aim of offering a speedy, private, and cheap resolution to them.
On 23.05.2024, a sexual harassment complaint where the complainant experienced physical harassment by her male employer was heard before the Tribunal. On 12.06.2024, after considering sufficient evidence and testimony, the Tribunal issued its first award under Section 19 of the Anti-Sexual Harassment Act 2022 to order the harasser to make apology statement to the complainant as requested by the complainant. This award marks the first “success” of the Tribunal.
Other than an apology Section 20 of Anti-Sexual Harassment Act 2022 allows the Tribunal to order compensation up to RM250,000, order that the harasser attend trainings, and more. Of course, the Tribunal may also dismiss frivolous complaints.
Section 22 of Anti-Sexual Harassment Act 2022 provides that the award of the tribunal shall be final and binding on all parties to all proceedings and deemed as order of court and may be enforced accordingly but Section 23 of Anti-Sexual Harassment Act 2022 allows an award to be challenged in the High Court.
Section 21 of Anti-Sexual Harassment Act 2022 provides that failing to comply with the Tribunal’s award within 30 days is a criminal offense. If the award includes compensation or damages, the offender may be fined twice the total amount of compensation or damages, imprisoned for up to two years, or both. If no compensation or damages are awarded, the fine may be up to RM10,000 or imprisonment for up to two years, or both. For continuing offences, an additional fine of up to RM1,000 per day may be imposed for each day the offence continues after conviction.
The Importance and Significance of Internal Anti-Harassment Framework:
Considering the potential serious consequences to an employer, it is crucial for Employers to clearly communicate its commitment to creating a safe work environment.
To do that, Employers are advised to have a dedicated sexual harassment policy which would not only send the message that the Company is committed to seriously address sexual harassment in the workplace but also make it clear what behavior is unacceptable in the workplace.
Other than that, Employers are encouraged to frequently organize trainings on this topic and to ensure that there is a transparent and robust mechanism where sexual harassment complaints can be made, investigated, and handled.
Conclusion
Overall, we hope that this article helps shed light on the legal framework surrounding sexual harassment in Malaysia and provides practical guidance to those seeking clarity on their rights and responsibilities, employers and employees alike.
Addressing sexual harassment is a serious matter, and we hope that all parties take all necessary measures to promote a safer and more respectful workplace.
If you require any advice or representation by an Employment Lawyer, please feel free to contact us.