n ational e mployment l aw c onference 17 th & 18 th a ... · membuat rayuan atau pertimbangan...

BODIPALAR PONNUDURAI DE SILVA

NATIONAL EMPLOYMENT LAW CONFERENCE

17TH & 18TH APRIL 2018

“SEXUAL HARASSMENT: THE PERENNIAL

THORN IN YOUR SIDE”


Article 4 of the Code defines sexual harassment as:

“Any unwanted conduct of a sexual nature having the effect of verbal, non-verbal,

visual, psychological or physical harassment;

• 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 his/

her employment.”


Section 2 of the Act defines:

“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”

• The above provision was incorporated in the recent

amendments to the Employment Act 1955 in 2012.


Md. Salehuddin Othman v New Straits Times Sdn Bhd [2013] 2 LNS 0568

• The Court held that the following acts to constitute sexual harassment:

! wrapping his arm around a female co-worker and clasping her hand against her free will

and consent;

! holding the hand of a female co-worker and stroking her arm without her free will and

consent;

! patting the buttock of a female co-worker against her free will and without her consent;

! massaging the shoulder of a female co-worker against her free will and without her

consent; and

! putting his hands around the waist of a female co-worker against her free will and without

her consent.


Md. Salehuddin Othman v New Straits Times Sdn Bhd [2013] 2 LNS 0568 In the same case, the Court however held that the following do not constitute sexual harassment:-

! Uttering the following words – “I want you to come back with me to the hotel in Cyberjaya, I have a room in Cyberlodge.”

! Uttering the following words – “I am turned on by your body hair” ! Regularly making phone calls and telling a female co-worker that he is lonely and had

not had sex for a long time and asking her to meet him privately. ! Calling a female co-worker to talk about his personal problems including matters

relating to having a personal mistress and telling her that he wanted to have fun with her. When she declined, he uttered “You are no fun.”

! Inviting a female co-worker to get on a cruise to Phuket and telling her that “it will be a lot of fun and we will be in different cabins if we go.”


Md. Salehuddin Othman v New Straits Times Sdn Bhd [2013] 2 LNS 0568

! sitting next to and staring at a female co-worker while saying, “Buat la kerja I nak tengok” and “I suka jari you”

! regularly requesting her to go on a date with him and send an SMS that reads – “how you doing? Suddenly I miss you so much.”

! making the following remarks to a female co-worker – “I want to take you as my partner to Anugerah Bintang Popular in Genting Highlands” then telling her “you pergilah kerja I tunggu you dalam bilik”. Also suggested that the female co-worker should stay another night in Genting Highlands so that he could be with her;

! made the following remarks when she told him not to hold her hands – “I don’t give a fuck about what people have to say, I am the GE and I can do whatever I want. I can even sack a few people you know.”



In the above book, the authors sets out conduct which are not deemed to constitute

sexual harassment which include:

a) When a male co-worker compliments your outfit

b) When he gives you a social hug-kiss and does the same to everyone else

c) When he tells a naughty joke which is rather amusing

d) If he wants to date you and he is single, but you decline

e) If you have done a good job, he pats you on the shoulder

f) If he leaves a memo complimenting you on your good work

g) When he gives you an appointment after office hours and discusses matters with his

office door open

h) When he tells you that you may have to entertain male clients, even at night


! Sunway Lagoon Club Bhd v Md Noh Mat Tahir [2007] 2 ILR 273

! Facts: The Complainant (a club member) alleged that she was sexually harassed by the

employee who gave her a massage in her state of partial undress. The Complainant

alleged that the employee fondled her breasts and touched her private parts.

! Held: The conduct of the Complainant immediately after the massage was important

to prove whether she was actually harassed. After the massage, the Complainant

accepted an invitation from the employee for coffee, and also asked the employee to

give her a lift home. In this case, the Court found grave doubts about the veracity of

the Complainant’s evidence and found the need for corroboration was very necessary.

This is because the conduct of the Complainant was not consistent with a person who

claims to be sexually harassed.


The Code encourages the establishment of preventive mechanisms at the

enterprise level to combat sexual harassment in the workplace. Elements of a

comprehensive in-house mechanism outlined by the Code includes:

" Policy statement by the Management to the employees prohibiting sexual

harassment in the organization;

" A clear definition of sexual harassment to ensure that the employees are

aware of unwelcomed and offensive conducts and attitudes;

" A complaints/grievance procedure to deal with the problem when it

arises;

" Enforcement of disciplinary rules

" Adequate measures to ensure maximum confidentiality and sufficient

remedial measures for victim; and

" Promotional and educational programs to raise awareness.



• Section 81B(1)

“Upon receipt of a complaint of sexual harassment, an employer or any class

of employers shall inquire into the complaint in a manner

prescribed by the Minister.”

• Section 81B(2)

“ Subject to subsection (3), where an employer refuses to inquire into the

complaint of sexual harassment as required under subsection (1), he shall, as

soon as practicable but in any case not later than thirty days after

the date of the receipt of the complaint, inform the complainant

of the refusal and the reasons for the refusal in writing.”


• Section 81B(3)

“Notwithstanding subsection (2), an employer may refuse to inquire into any

complaint of sexual harassment as required under subsection (1), if-

(a) The complaint of sexual harassment has previously been inquired into and no

sexual harassment has been proven; or

(b) The employer is of the opinion that the complaint of sexual harassment is

frivolous, vexatious or is not made in good faith.

• Section 81B(4)

“ Any complainant who is dissatisfied with the refusal of the employer to inquire into

his complaint of sexual harassment, may refer the matter to the Director General.”


• Section 81C

If the employer is satisfied that sexual harassment is proven under

Section 81B(1), the employer shall take disciplinary action against the

harasser if the harasser is also an employee of the organization.

In the case where the harasser is not employed in the organization, the

employer shall recommend that the harasser be brought before

appropriate disciplinary authority to which the harasser is subject to.


• Section 81F

Any employer who fails to inquire into complaints of sexual

harassment under Section 81B(1) commits an offence and

shall be liable to a fine not exceeding RM10,000

irrespective of the wages of the employee.


! Sitt Tatt Bhd. V Flora Gnanapragasam & Anor(2005) 7 CLJ 522

! Facts: The Claimant claimed that she was constructively dismissed by acts of sexual

harassment by her superior, she further submitted that she has approached two senior

officers to complain about the harassments but neither of them took any steps to

rectify the situation.

! Held: The two senior officers, Desmond and Nik Murad were guilty of dereliction of

duty in taking any remedial measures when the Claimant informed them of the sexual

harassments committed by Sivananda, the Claimant’s superior. All the incidents were

reported to them when the claimant could no longer tolerate the harassments. The

facts showed that they had connived and condoned the acts of Sivananda. The

Claimant was left with no other alternative but to consider herself constructively

dismissed and she had lawfully done so.


! Harun bin Yaakub v RHB Bank Berhad [2017] ILR 283

! Facts: The employee was dismissed for gross misconduct by the Bank. The

Disciplinary Committee found the following conduct tantamount to sexual

harassment :

i) hugging the Complainant;

ii) attempting to kiss the Complainant’s left cheek.

! Held: The employee was found to have committed the act of sexual harassment but

the punishment of dismissal was too harsh.


Harun bin Yaakub v RHB Bank Berhad [2017] ILR 283

The Industrial Court justified its findings on the following grounds:-

" that the Claimant was not asked to appear at a domestic inquiry so as to give him an opportunity to explain himself;

" that he has worked with the Bank for 32 years and he had unblemished record;

" both the complainant and claimant were close colleagues;

" just after the incident, both the complainant and claimant were speaking normally; and

" The complainant only felt afraid of the plaintiff ’s action because it took place after working hours when the office was empty.


Harun bin Yaakub v RHB Bank Berhad [2017] ILR 283

As per the Industrial Court:-

“Selepas kejadian itu COW2 dan Pihak Yang Menuntut masih berbual-bual seperti biasa

sebagai rakan sepejabat. Daripada keadaan kejadian ini bolehlah disimpulkan bahawa Pihak Yang Menuntut bukanlah jenis lelaki yang bernafsu tinggi atau ganas. Tiada sebarang kekerasan jenayah dilakukan

dalam inciden ini kerana perbuatan Pihak Yang Menuntut dalam keadaan sepontan. Daripada rekod perkidmatan selama 32 tahun dengan pihak Bank dan daroi jawatan Kerani biasa dengan gaji RM350.00 sebulan sehingga gaji terkini Pihak Yang Menuntut sebanyak RM5,115.00 sebulan, Pihak Yang Menuntut

tidak mempuyai sebarang rekod disiplin atau salahlaku sebelum ini. Pihak Responden sebelum menjatuhkan hukuman buang kerja tidak ada memberi apa-apa peluang kepada Pihak Yang Menuntut beliau untuk

membuat rayuan atau pertimbangan sebelum hukuman diputuskan.”



Harassment is defined as ‘a persistent and deliberate course of

unreasonable and oppressive conduct, targeted at another person, which is

calculated and does cause that person alarm, fear or distress’ (Thomas v

News Group Newspaper Ltd)

Tainted further by the persistent and deliberate course of

unreasonable and oppressive conduct with some constant and

objectionable sexual hallmarks, a tort of sexual harassment would

have been committed.


! Mohd Ridzwan Abdul Razak v Asmah Hj Mohd Nor

! Facts: The plaintiff was employed as the Head of Department of the Risk

Management Division in Lembaga Tabung Haji, while the Defendant worked under

the direct supervision of the Plaintiff. The Defendant alleged sexual harassment by the

Plaintiff where he repeatedly uttered vulgar words to her and made sex oriented jokes

in her presence.

! By the reason of the complaint of sexual harassment, the Plaintiff instituted a

defamation action against the Defendant , and she in turn, counter claimed for mental

and emotional pain and suffering by reason of sexual harassment.

! The Defendant suffered depression as result, and lodged a complaint of sexual

harassment against the Plaintiff.


! Mohd Ridzwan Abdul Razak v Asmah Hj Mohd Nor

! Inquiry Committee:

! An inquiry committee was set up but found that there was insufficient evidence to

warrant disciplinary action against the Plaintiff. However, when the Defendant

approached the Head of Human Resources, she was told that the Plaintiff had been

given administrative warning and transferred to a different department and she need

not worry.


! Mohd Ridzwan Abdul Razak v Asmah Hj Mohd Nor [2013] 9 CLJ 243

! HIGH COURT-Held:

! The Defendant proved the truth of her allegations of sexual harassment against the

Plaintiff.

The Court dismissed the Plaintiff ’s claim and allowed the Defendant’s counterclaim.

! The Defendant’s complaint to the CEO of Tabung Haji complied with the proper

grievance procedure and no malice could be inferred from her actions.

! The psychiatrist’s clinical finding was that the Defendant’s sexual harassment by the

Plaintiff had the effect of changing the Defendant to be depressed, subdued and sad.

Therefore she suffered emotional and mental pain and suffering and was awarded

RM100,000 for general damages and RM20,000 for aggravated and exemplary damages.



! COURT OF APPEAL-Held:

! Affirmed the decision of the High Court.

! The vulgar and sexually explicit words complained of the Defendant was clearly sexual

harassment in the form of verbal harassment under Code of Practice on the

Prevention and Eradication of Sexual Harassment in the Workplace 1999.

! The acts of sexual harassment were serious enough to cause adverse psychological

effect on the victim, those acts would fall within the tort of “intentionally causing nervous shock”



! FEDERAL COURT-Held:

! Dismissed the appeal. Introduced the tort of sexual harassment into our legal and

judicial system.

! Until Employment (Amendment) Act 2012, there were no statutory provisions on

sexual harassment in Malaysia.

! The decision of the High Court on the finding of sexual harassment must be affirmed

however the Defendant’s sufferings had not attained the level of physical harm to

qualify for the tort of intentionally causing nervous shock as decided by the Court of

Appeal.



! FEDERAL COURT-Held:

! Court found the ingredients of sexual harassment were present in abundance, namely

the existence of a persistent and deliberate course of unreasonable and oppressive

conduct targeted at another person calculated to cause alarm, fear and distress to that

person. This conduct was heavily spiced with sexual hallmarks as illustrated by the

continuous leery and obscene verbal remarks uttered by the Applellant, which

culminated in the Respondent displaying symptoms of emotional distress, annoyance

and mental depression due to the alarm, fear and anxiety.


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