Sexual Harassment: Duty Of Employers, Policies & Legal Recourse For Employees

The year 2020 has not only brought an international epidemic, but it has also shed light on various systemic issues plaguing our nation.

Sexual harassment in the workplace is nothing new, and as I write this article I feel as if I may be beating a dead horse. Though this area has been extensively discussed, I will do my best to not only discuss the legal aspects of it but also offer practical solutions to both employers and employees.

What is the legal burden on employers in respect of addressing sexual harassment in the workplace?

The Employment Act 1955 (“EA”) makes it mandatory for employers to investigate all sexual harassment complaints made involving their employees. Refusal to inquire into the complaint obliges the employer to provide its reasons, in writing, for its refusal within 30 days from the date the complaint is received.

Notwithstanding this, an employer may refuse to inquire into the complaint if the complaint has been previously inquired into (and no sexual harassment is found) or where the employer is of the opinion that the complaint is frivolous and was not made in good faith. 

Employers should be wary that any refusal to inquire can be referred to the Director General of Labour who will assess the complaint and may direct an employer to inquire into such complaint.

The Director General could also, vide the assessment, decide that sexual harassment has been proven. This is important to note for employers as where the Director General decides so, the complainant may terminate their employment contract without notice, entitling them to benefits and indemnity as provided for in their employment contract or the EA (where applicable).

In light of this, employers may want to reconsider the way their employment contracts are drafted, specifically in regards to the termination of employment by the employee. Employers could also go the extra mile to ensure that their employment contracts specifically cover what kind of benefits or indemnity an employee is entitled to, should the employee terminate its contract under S.81E of the EA. 

There is also the Code of Practice on the Prevention and Eradication of Sexual Harassment 1991 (“Code”) which encourages employers to adopt and implement mechanisms and policies to address sexual harassment in the workplace.

While I applaud the comprehensive Code issued by the Ministry of Human Resources, it is still only a guideline for employers to refer to when policing such issues. The Code is absent of any legal obligation imposed on employers to undertake in addressing sexual harassment at the workplace.

Despite both EA and Code not requiring employers to have written policies in place or not setting a minimum standard expected of employers, I highly recommend all companies and businesses to have a clear written policy in place to clarify how such issues can be handled by its employees, to define what is considered as sexual harassment and the potential ramifications on any employees found to have sexually harassed another. This would create awareness within the workspace and is a step taken in preventing sexual harassment from even occurring. 

Including policies against sexual harassment in the company’s code of practice

For companies looking to form a formal policy surrounding sexual harassment, there are several policies publicly available that can be referred to as a guide.

From my perusal, companies usually either include its policy on sexual harassment in a general code of ethics handbook/guide or issue a distinct written policy on sexual harassment. Large companies like MMC Corporation Berhad and Petronas expressly make sexual harassment as misconduct against the companies’ code of ethics, which prohibits other conduct like insider trading, disclosure of confidential information, bribery, substance abuse, etc. Whereas the Malaysia Deposit Insurance Corporation (“MDIC”) has issued a separate policy on workplace harassment which covers sexual harassment and the available complaint/inquiry system. 

If you’re considering forming a specific policy on sexual harassment in the workplace, I suggest referring to MDIC’s policy which is comprehensive and details the complaint procedure, how such investigation is carried out, the importance of confidentiality when dealing with a complaint, the company’s stance on false accusations, disciplinary measures and what restitutions are available for unfounded harassment complaints, among many other things. There is also a short FAQ section at the end of the policy addressing common queries. The policy also recommends complainants taking an informal approach where appropriate to resolve certain sexual harassment occurrences.

After all, societal roles and what is deemed as appropriate behaviour in the workplace have developed over the years, hence there may exist grey areas of sexual harassment occurrences.

The importance of defining sexual harassment in the workplace

At this juncture, I’d also like to point out the importance of defining sexual harassment in the workplace for respective companies and creating awareness.

In the recent Industrial Court case of Loganathan Maniam v Murphy Sarawak Oil Co Ltd [2020] 2 ILR 275, the claimant sought redress for his dismissal, alleging that it was without just cause or excuse. The Company found the claimant guilty of 4 charges on sexual harassment against his secretary. It is pertinent to highlight the specific conduct the claimant was charged for:-

1. verbally harassing his secretary by calling her sayang in public and through messages;
2. physically harassing his secretary by placing his hand around her shoulders and shaking her hands unnecessarily;
3. paying unwelcomed attention to his secretary by giving unwanted presents and messages including sending inappropriate pictures and gifts; and
4. abused his position by expecting and instructing his secretary to show up at his hotel room during an office event and to fetch him from the airport.

The Industrial Court found that the misconduct warranted a dismissal.

To some, such conduct may be seen as usual conduct between superiors and subordinates or harmless playful behaviour. Thus, it is very important for companies to take a stringent position against sexual harassment and an active role in educating and improving workplace behaviours.

How can sexual harassment victims seek personal compensation?

Sexual harassment is a demeaning offence that causes emotional, physical, and mental trauma which in a lot of cases require medical attention. The pain and suffering, let alone the psychological ramifications from sexual harassment warrants personal compensation.

When a person is sexually harassed, they are at liberty to make a police report for the crime which is encanvessed under Section 509 of the Penal Code which states that

“Whoever, intending to insult the modesty of any person, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen by such person, or intrudes upon the privacy of such person, shall be punished with imprisonment for a term which may extend to five years or with fine or with both”

However, doing so does not usually fairly compensate the victim personally for the crime committed as it is the State that handles the prosecution of the perpetrator. Nor are employers legally obliged to compensate its employees who have been sexually harassed.

Notwithstanding this, victims may turn to the civil courts for legal redress. As you may have heard, the Federal Court has recognized the tort of sexual harassment as a valid cause of action in Mohd Ridzwan Abdul Razak v Asmah Hj Mohd Nor [2016] 4 MLJ 282 (“Asmah Case“) where the Court upheld the High Court’s order that the harasser was to pay RM100K as aggravated damages and RM20K as damages for suffering to the victim.

The element of the newly imported cause of action is

• a persistent and deliberate course of unreasonable and oppressive conduct targeted at another person; which
• is calculated to cause alarm, fear and distress to that person.

While I commend the Federal Court for its judicial activism in this case, it is noted that the requirement that the sexual harassment must have been persistent indicates that a one-off harassment may not suffice in proving the cause of action. This is a foreseeable problem faced by any victims seeking redress under this tort.

The other potential cause of action one may take against a sexual harasser is for the tort of intentionally causing nervous shock, which is what the Court of Appeal in the Asmah Case initially found for as the requisite cause of action against the harasser.

The Federal Court opined that a singular act is sufficient to establish a tort of intentionally causing nervous shock, but acknowledged that the aggrieved party must also establish that they have suffered physical harm.

This makes such a tort more difficult to succeed in such sexual harassment cases because a lot of sexual harassment is done verbally or through gestures. 

Conclusion

In light of the slight loop-holes raised, I think it is very important for any victim thinking about taking civil legal action to procure legal advise before taking any steps in respect of the sexual harassment complained of. Sexual harassment stems from systemic sexism which has plagued Malaysia for far too long.

Therefore, it is important for us to play our respective roles in preventing and eradicating such occurrences.