We live in times here in Malaysia where many victims do not report their ordeal out of fear, while some are unsure of what conduct constitutes sexual harassment and what doesn't.
Even when you know that what’s happening isn’t right, it can be confusing to try to figure out if it crosses the line into something legally wrong.
The objective of this article is to help you understand what sexual harassment is,
make sense of your options, and take care of yourself in the process.
How is sexual harassment governed in Malaysia?
There are some sections in the Penal Code which may give some protection but these only cover the physical forms of sexual harassment. Section 509 of the Penal Code criminalises the offence of “insulting the modesty of any person” with a custodial penalty of up to five years, but it is not wide enough to include all the elements of sexual harassment.
(“the Code”) was introduced by the Human Resources Ministry (“MOHR”). Unfortunately it does not have the force of law. According to the Malaysian Employers Federation (“MEF”), only a small fraction of registered and active companies have adopted and implemented the code.
In December 2018, the Public Service Department issued a circular (Garis Panduan Mengendalikan Gangguan Seksual di Tempat Kerja Dalam Perkhidmatan Awam2) consisting a more comprehensive guideline for handling sexual harassment in the workplace for civil servants.
What is sexual harassment?
Section 2 of the Employment Act 1955 (“the Employment Act”) defines sexual harassment as:
“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”
What is considered sexual harassment at work?
Perceptions of what constitutes sexual harassment differ among individuals. What some people might consider acceptable behaviour, others might think of as sexual harassment.
Sexual harassment is harassment if the unwanted behaviour falls into one or all of
these categories:
a. relates to your gender or sexuality;
b. is intentional and/or repeated;
c. is unwanted and not returned;
d. it interferes with your ability to do your job, or has an effect on your working
conditions.Examples of sexually harassing behaviour include (this is by no means a comprehensive list):
a. unwelcome touching;
b. staring or leering;
c. unwanted invitations to go out on dates;
d. intrusive questions about a person's private life or body;
e. insults or taunts based on sex;
f. sexually explicit emails or SMS text messages;
g. comments about someone’s appearance;
h. conversations, questions, and stories about sex;
i. rumors about someone’s sex life or use of sex to get ahead;
j. vulgar language, jokes about sex (or gender), innuendo, and music with
sexually explicit lyrics;
k. requests for sexual favors and pressure for sex;
l. threats based on rejection of sexual advances.For an example, in a recent 2018 case of Shamani Devi Chendra Chekheran v Shangri-la Hotels and Resorts, the court demonstrated how wide the definition of sexual harassment is, these were the terms that the court ruled as sexual
harassment:
“thank you for signing the letters for the trip...mmmmuax!!!”
“[that he was] staring at the ass [of another agent]”
“U R MY UBBIE Always and FOREVER!!!”Are women the only victim?
Sexual harassment is not just exclusive to women, as any person of any gender can be the perpetrator or the victim of sexual harassment. The law does not make this distinguishment, it covers any sexual harassment done to any gender by any gender.
Based on statistics from the Royal Malaysian Police (PDRM), between 2013 and 2017, out of a total of 1,218 reported sexual harassment cases, 79 percent involved victims who were women while 21 percent involved male victims.
What should you do?
Here are some basic steps you need to take to proper redress such unfortunate
situation:
a. Confront the harasser firmly by stating your discomfort by his/her behaviour.
b. If this continues, report to your supervisor immediately.
c. Record the incident in details i.e. when, who, where, how, and witnesses (if
any).
d. File a formal complaint in accordance with your company’s policies and
procedures; and
e. Document everything that happens from the start till the end.Process of inquiry
Section 81B of the Employment Act makes it mandatory for all employers within 30 days to establish a procedure dealing with complaints of sexual harassment (between employees, employers, and employer and employees) and to inquire into the complaint in a manner prescribed by the MOHR. The penalty for not implementing such a procedure is a fine not exceeding RM10,000.
However, the Act does not lay out the guidelines to carry out the investigations. As
such, employers are given free rein to dictate the process of investigating and handling of the complaints.
What if you are not satisfied with the outcome?
In the event your complaint is ignored or you are dissatisfied with the outcome, S.81D of the Employment Act allows you to file a complaint to the Director General of Labour (“Director General”). The Director General may direct the employer to re-inquire into the complaint upon assessment.
To ensure employers’ inquiries into sexual harassment complaints, S.81F of the Employment Act makes it an offence with a liability of fine not exceeding ten thousand ringgit if any employer fails to:
a. inquire into complaints of the refusal;
b. inform the complainant of the refusal and the reasons for the refusal;
c. inquire into complaints of sexual harassment when directed to do so by the
Director General; or
d. submit a report of inquiry into sexual harassment to the Director General.What happens next?
Under s.81C of the Employment Act, once the employer is satisfied that sexual harassment is proven, the employer shall take disciplinary action which may include the following:
a. dismissing the employee without notice;
b. downgrading the employee; or
c. imposing any other lesser punishment as he deems just and fit, and where the punishment of suspension without wages is imposed, it shall not exceed a period of two weeks.If all fails, you can sue
Sexual harassment received a dramatic recognition in the landmark decision of the Federal Court in June 2016 in Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor by introducing the tort of sexual harassment into the justice system, which basically allows victims to sue their harassers.
Asmah bt Hj Mohd Nor alleged that Mohd Ridzwan bin Abdul Razak uttered several inappropriate comments including:
"Do you wanna marry me or not? I have a lot of money,"
"You're always sick, which is why you should get married. Do you want a married man?"Asmah was diagnosed with major depression from Ridzwan’s sexual harassment.
She then filed a complaint against Ridzwan with their employer and the company
initiated an inquiry but found that there was insufficient evidence to warrant disciplinary action against Ridzwan. The Human Resources Department issued an
administrative warning instead, resulting in Ridzwan's work contract not being renewed.
In a turn of events, Ridzwan decided to sue Asmah for defamation, claiming that her complaint had affected his reputation as a senior member of the company. In return, Asmah counterclaimed for damages for the sexual harassment that she faced and relied on a psychiatrist report to explain the repercussions of the harassment on her.
The Federal Court allowed Asmah’s counterclaim for sexual harassment and ordered general and aggravated damages for the tort of sexual harassment.
This decision changed the way we deal with offenders and victims of sexual harassment. As to how far the limitations and definitions of this will extend, it remains to be seen if and when other cases come to light.
Conclusion
Employers should take note of their obligations under the Employment Act to inquire into sexual harassment claim, and implement appropriate policies and procedures to deal with such complaints.
All employees should be made aware that sexual harassment in any form constitutes misconduct and is prohibited and shall not be tolerated or condoned by anyone in the organization.
Workplace has become “home” for more than half of our lifetime in terms of hours
spent in total, it is of considerable importance to create a conducive working
environment for its employees.
Hence, any form of unwelcome behaviour that threatens the safety or wellbeing of the individual should be addressed promptly to avoid dire consequences that will inevitably impact not only the occupational health and the productivity of the
individual but also the morale of the employees and the organizational performance.
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