Repeatedly calling a person “sayang” and flirting with colleagues are acts that are frowned upon in a professional work environment. However, do these acts actually amount to sexual harassment?
In a survey by Women’s Aid Organisation, 62% out of the 1,010 Malaysian women surveyed reported that they experienced some form of sexual harassment in their workplace. The #MeToo Movement, a movement intended to encourage people of all genders to speak out on their sexual harassment encounters, has been gaining momentum in Malaysia with employees increasingly using social media to speak up about their sexual harassment in their workplaces.
It is no longer an option for employers to be ignorant of allegations of sexual harassment occurring in the workplace. In this article, we explore what amounts to sexual harassment in the eyes of the law and how sexual harassment complaints should be managed.
What is sexual harassment based on the Employment Act 1955?
Sexual harassment is defined in the Employment Act 1955 (“EA 1955”) as “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.”
The following are examples which may come within the definition in the EA 1955:
- Making indecent or derogatory jokes about a colleague of the same/opposite gender;
- Touching a colleague’s thighs; and
- Constantly asking a colleague out on a date despite being rejected multiple times.
Who can make a sexual harassment complaint?
Under Section 81A of the EA 1955, anyone can make a sexual harassment complaint, whether it is:
- by an employee against another employee;
- by an employee against any employer; or
- by an employer against an employee.
What amounts to sexual harassment?
Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace in 1999
The Ministry of Human Resources published a Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace in 1999 (“Code of Practice”) as a guide for both employers and employees alike. The 1999 Code of Practice has been widely referred to by the courts when interpreting whether a conduct amounts to sexual harassment. The definition of sexual harassment in the Code of Practice is similar to the definition under the EA 1955. It provides that sexual harassment amounts to:
“Any unwanted conduct of a sexual nature having the effect of verbal, non-verbal, visual, psychological or physical harassment;
(i) that might, on reasonable grounds, be perceived by the recipient as placing a condition of a sexual nature on her/his employment; or
(ii) that might, on reasonable grounds be perceived by the recipient as an offence or humiliation, or a threat to her/his well-being, but has no direct link to her or his employment.”
The Code of Practice further divides this definition into two categories: “sexual coercion” and “sexual annoyance” which, briefly, means the following:
- Sexual Coercion – Where the sexual harassment act/conduct results in some direct consequence to the victim’s employment.An example of sexual coercion includes a situation where a superior threatens to deny job benefits to a subordinate if the subordinate refuses the superior’s request for a date.
- Sexual Annoyance – Where the sexually-related conduct is offensive, hostile and/or intimidating to the recipient, but nonetheless has no direct link to any job benefits. This definition also extends to sexually-related conduct by the company’s clients towards employees.An example of sexual coercion includes a situation where a colleague constantly makes suggestive and offensive sexual remarks to another colleague of similar rank.
The Code of Practice provides that sexual harassment is not confined to acts towards female employees only. It provides for acts done towards both male and female employees, as perpetuated by either gender.
There are various precedents in case law that have distinguished acts and conduct that amount to sexual harassment, which are as follows:
- Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor  4 MLJ 282 (FC)The applicant uttered vulgar and defamatory words such as:
- “Another sob, typical homebreed”
- “I am beginning to hate very much these homebreed, worst than khinzir (pig)’
- “You nak kahwin dengan I tak, I banyak duit tau’ (Do you want to marry me? I have a lot of money, you know)”
- ‘Would you prefer married man?
- Mogan@Mohan Maniam V. Sime Darby Auto Connexion Sdn Bhd (AWARD NO. 117 OF 2021, 27 January 2021)
- The claimant touched the complainant’s back and caressed the complainant’s hip multiple times; and
- The claimant invaded the complainant’s personal space, almost hugging her, in order to retrieve his water bottle. The court held that the claimant had other ways to reach the water bottle without positioning himself physically close to the Complainant.
- Shamshir Alam S M Khairuddin v IBFIM (AWARD NO. 662 OF 2019, 21 February 2019)
- Claimant grabbed the complainant’s arm and said “sedap jugak pegang lengan kau ni” (It’s quite nice to hold your arm) and when the complainant tried to pull back, he pulled her hand again and said “cantik jugak jam” (Your watch is nice too);
- Claimant caressed complainant’s arm; and
- Claimant rubbed and caressed the complainant’s back while uttering “ok ke.. stress keje ke… banyak keje ke?” (Okay or not… your work is stressful… a lot of work?)
- Loganathan Maniam V. Murphy Sarawak Oil Co Ltd (AWARD NO. 448 OF 2020, 20 February 2020)
- Claimant called the complainant “sayang” publicly;
- Gave her unsolicited presents such as perfume, hand cream, a floral phone cover and chocolates on Valentine’s Day;
- Touching her cheek, sending her suggestive messages via WhatsApp; and
- Instructing her to carry out work outside her job scope such as picking him up from the airport, following him to buy his attire for a team building dinner; and expecting her to show him to his hotel room during the team building event.
- Mohamad Rosli Abdul Hadi lwn. Aikay Plastic Manufacture Sdn Bhd (AWARD NO. 2705 TAHUN 2019, 10 October 2019)
The claimant sent the following messages which amount to psychological harassment:
- “S Penipu punya betina.” (Damn. Lying female.);
- “Rupa cntik. Agama pandai. Tp… hancur” (Look pretty, religious, but… destroyed); and
- “Awat diam. Awak sedang merindui… kan? Sue jgn paksa diri.. Nnti mudarat kn badan. Sue maaf abg” (Why are you quiet? You are missing me right? Sue, do not force yourself. It will be detrimental to your body. Sue, forgive me.)
The cases show that the court takes a broad approach in determining whether the claimant’s actions amount to sexual harassment. We also see that the courts give particular consideration to the complainant’s reaction to the act of sexual harassment. As such, even if the claimant’s actions may be regarded as accidental or “friendly”, the court will take into account the complainant’s discomfort and uneasiness with the conduct complained of.
Managing sexual harassment complaints
Any employee may lodge a complaint of sexual harassment against another employee or employer. Similarly, a complaint of sexual harassment may be made by an employer against an employee. Section 81D of the EA 1955 imposes a legal obligation on the employer to inquire into any sexual harassment complaint upon receipt of such a complaint. However, an employer may refuse to inquire into any complaint of sexual harassment if the complaint of sexual harassment has previously been inquired into and no sexual harassment has been proven or the employer is of the opinion that the complaint of sexual harassment is frivolous, vexatious or is not made in good faith. The employer shall inform the complainant of the refusal to inquire into the complaint of sexual harassment and the reasons for the refusal in writing wihin 30 days from the date of receipt of the complaint.
The complainant may lodge a complaint to the Director General of Labour in the event he/she is not satisfied with the refusal of the employer to inquire into his/her sexual harassment complaint. The Director General of Labour will direct the employer to conduct an inquiry into the sexual harassment complaint if he thinks the matter should be inquired into.
An inquiry into a complaint of sexual harassment can be initiated with the issuance of a show cause letter to the person against whom the sexual harassment complaint is made. The show cause letter must state material particulars such as the time, date and place of the alleged harassment and a detailed description of the alleged harassment. This is to enable the accused employee to respond to the show cause letter and to prepare his/her defence against the allegations of sexual harassment. A show cause letter which lacks material particulars may give rise to an unfair dismissal claim if the employer terminates the accused employee for sexual harassment.
Upon an inquiry into a complaint of sexual harassment, the employer should take the following disciplinary action if the employer is satified that sexual harassment is proven:-
(i) dismissing the employee without notice (immediate dismissal);
(ii) downgrading the employee (demoting the employee); or
(iii) imposing any other lesser punishment as the employer deems just and fit, and where the punishment of suspension without wages is imposed, it must not exceed a period of 2 weeks.
In the case where the person against whom the complaint of sexual harassment is made is a person other than an employee, the employer shall recommend that the person be brought before an appropriate disciplinary authority to which the person is subject to.
Alternatively, a complainant may also lodge a complaint of sexual harassment directly to the Director General of Labour and the Director General of Labour may direct the employer to inquire into such complaint. Should the employer be directed to inquire into the complaint, the employer has to submit a report of the inquiry to the Director General of Labour within 30 days from the date of the direction.
If the inquiry is conducted by the Director General of Labour, he shall decide whether sexual harassment is proven or otherwise, and the complainant will be informed of the decision. If the Director General of Labour finds that sexual harassment is proven, the complainant is entitled to terminate his/her contract of service without notice and be paid wages as if the complainant has given the notice of termination, termination benefits and indemnity as provided for under the EA 1955 or the contract of service, as the case may be.
Notwithstanding, the Director General of Labour may refuse to inquire into the complainant’s complaint if the complaint has previously been inquired into by the Director General of Labour and no sexual harassment is proven or the Director General of Labour of of the opinion the complaint of sexual harassment is frivolous, vexatious or is not made in good faith. The complainant shall be informed of the Director General of Labour’s refusal to inquire into the complaint of sexual harassment within 30 days from the date of receipt of the complaint.
An employer commits an offence and shall, on conviction, be liable to a fine not exceeding RM10,000 if the employer fails to:-
(a) conduct an inquiry into the complaint of sexual harassment;
(b) inform the complainant why the employer refuses to conduct an inquiry into the complaint of sexual harassment;
(c) conduct an inquiry as directed by the Director General of Labour; or
(d) submit an inquiry report as by the Director General of Labour.
Certain acts of sexual harassment, e.g. physical harassment may also amount to a criminal offence under the Penal Code. In such circumstances, the complainant may consider lodging a police report against the perpetrator in addition to the sexual harassment complaint made to the employer or the Director General of Labour.
Malaysia has taken progressive steps to raise awareness surrounding the severity of sexual harassment. Allegations or complaints of sexual harassment in a professional environment should no longer be ignored or dismissed lightly. Employers should take a proactive in promoting awareness and handling cases regarding sexual harassment. Employers should take the intiative to understand and identify what sexual harassment amounts to in the Malaysian workplace, and to implement internal policies and measures to assist with the prevention of the occurrence of encounters of this nature. It is best to ensure that a company’s policy and grievance procedure sufficiently address the issue of sexual harassment in order to create a safe workspace, and that the company’s human resource department is equipped to properly handle complaints of sexual harassment in the workplace.
 Survey by Women’s Aid Organisation dated 6.11.2020 https://wao.org.my/womens-experiences-and-perceptions-of-sexual-harassment-demonstrate-the-urgent-need-for-a-sexual-harassment-act/
By Diana Cheak, Wong Sue Ann & Celinne Teh
Note: This article does not constitute legal advice to any specific case. The facts and circumstances of each and every case will differ and therefore will require specific legal advice. Feel free to contact us for complimentary legal consultation.