Sexual harassment at workplace : what can you do ?

According to a 2020 survey, 62% percent of Malaysian women have experienced workplace sexual harassment and the numbers are unfortunately growing. Sexual harassment is deemeda misconduct which may be subjected to disciplinary action. This newsletter focuses on the law and practice on sexual harassment.

1. SEXUAL HARASSMENT: EMPLOYMENT ACT 1955

Employment Act 1955 defines sexual harassment in Section 2 as follows :

– Sexual harassment means any unwanted conduct of a sexual nature, whether verbal, nonverbal, 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.

• that might, on reasonable grounds, be perceived by the recipient as placing a condition of a sexual nature on her/his employment; or
  
  
• that might, on reasonable grounds, be perceived by the recipient as an offence or humiliation, or a threat to his/her well-being, but has no direct link to her/his employment”

Sexual harassment refers to :
“Any unwanted conduct of a sexual nature having the effect of verbal, non-verbal, visual, psychological or physical harassment:

(Code Of Practice On The Prevention And Eradication Of Sexual Harassment In The Workplace (1999) – Ministry Of Human Resources)

2. ELEMENTS OF SEXUAL HARASSMENT

There are three main elements to establish sexual harassment namely :

1. the occurrence of conduct that is sexual in nature ;
2. the conduct being unwanted ; and
3. the conduct is perceived as threatening the victim’s ability to perform her job which is in line with the definition.

(See the case of Mohd Ridzwan Abdul Razak v. Asmah Hj Mohd Nor [2016] 6 CLJ 346 FC)

3. CATEGORIES OF SEXUAL HARASSMENT

(See the case of Mohd Ridzwan Abdul Razak v. Asmah Hj Mohd Nor [2016] 6 CLJ 346 FC, Putrajaya)

4. FORM OF SEXUAL HARASSMENT

Sexual Harassment can be verbal harassment, non-verbal/gestural harassment, visual harassment, psychological harassment or physical harassment. This may occur at Workplace, Public Areas or Events.

5. EFFECTS TOWARDS VICTIMS

• • • Depression
    • Anxiety
    • Low self-esteem
    • Sleeping disorder
    • Sexual dysfunction

6. SEXUAL HARASSMENT VICTIM’S RECOURSE ?

a) AT THE WORKPLACE

i) Summary of Recourse

ii) Employment (Amendment) Act 2022

• In accordance with the recent amendment to the Employment Act 1955, which will come into effect on the 1st January 2023, employers will have to take additional precaution to avoid sexual harassment by prominently displaying a notice to promote awareness of the issue. The fine has been enhanced to fifty thousand ringgit (RM50,000.00).

b) MAKE A POLICE REPORT

• A police report will trigger police investigation which may lead to criminal charges against the perpetrator. (S354 or S509 Penal Code)
• Police report can be used to substantiate the complaint in a civil suit as well.
• Investigation Officer (Police) can be called as a witness by the Plaintiff in a civil case to support the investigation

ii) Employment (Amendment) Act 2022

• In accordance with the recent amendment to the Employment Act 1955, which will come into effect on the 1st January 2023, employers will have to take additional precaution to avoid sexual harassment by prominently displaying a notice to promote awareness of the issue. The fine has been enhanced to fifty thousand ringgit (RM50,000.00).

c) FILE A CIVIL SUIT AGAINST THE PEPETRATOR

• In addition to the employee taking disciplinary action against the perpetrator of the sexual harassment the victim can file a civil action. The Malaysian Courts have recognized the tort of sexual harassment as a cause of action.
• It is paramount for the victim to possess material evidence to support the allegation of sexual harassment, for instance, Whatsapp communication, recording of verbal conversations, physical contact by the perpetrator communicated to third parties (potential witnesses), medical report from psychiatrist, etc.
• Domestic inquiry or internal organization’s findings on a complaint of sexual harassment are relevant for court proceedings.

7. INTRODUCTION TO THE ANTI-SEXUAL HARASSMENT BILL 2021

The Anti-Sexual Harassment Bill has been passed on 20th July 2022 by Dewan Rakyat and 11th August 2022 by Dewan Negara.
The said Bill has yet to be Gazetted at the time of this publication.

The purpose of the Anti-Sexual Harassment Bill 2021 is to:

• Redress the sexually harassed victims
• Raise awareness and prevent the occurrence of sexual harassment
• Establish a Tribunal of Anti-Sexual Harassment (“the Tribunal”)

Our lawyers have conducted numerous cases involving sexual harassment. Should you have any enquiries, kindly contact us.

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