4 January, 2019
Cases involving misconduct of a sexual nature in the Industrial Court are often related to sexual harassment. However, the Industrial Court had paved new grounds recently in Syed Naharuddin Bin Syed Hashim v Etiqa Takaful Berhad (Award No.: 3143/2018) by deciding a case on sexual grooming. Before we delve further, its best to define what exactly amounts to “sexual grooming”.
Sexual grooming defined
In Syed Naharuddin, sexual grooming is defined as a gradual process where a pedophile lays a foundation of trust, love and friendship with a child before escalating the relationship to that of a sexual nature.
Such conduct is a crime pursuant to the newly enacted Sexual Offences Against Children Act 2017 (“SOAC 2017”), which makes it a criminal offence for an individual to sexually communicate with a child. The term “sexually communication” is broadly defined to include any communication which relates to a sexual activity and if any reasonable person would consider the communication in question to be sexual of nature.
The Syed Naharuddin case
The Claimant was the Head of Agency Management of the Company. An anonymous email was issued to the Company alleging that 2 officers of the Company had been operating as sexual predators and targeting girls as young as 13 years old. It was claimed that the Claimant used a pseudonym under “K-Boy” to carry out meetings with girls at Seri Pacific Hotel in KL. It was alleged that the Claimant’s conversations were recorded and featured in any expose by the STAR newspaper.
An investigation by the Company revealed that there were 2 video recordings featuring the Claimant which had gone viral pursuant to the newspaper expose. During an interview done during the company investigation, the Claimant voluntarily admitted amongst others, that:
- He was the individual by the name of “K-Boy”
- He met with an undercover journalist posing as a 15 year old girl. At the meeting, he had a conversation with her at the hotel lobby where he spoke of his sexual exploits with girls as young as 13 years old and tried to persuade her to go to his hotel room but to no avail.
- On another meeting, he met her again and took the journalist to his hotel room which was booked by the Company in conjunction with a program for its agency members. They talked for about 30mins wherein he allegedly admitted that he talked with her regarding his sexual exploits and that the substance of the conversation was sexually explicit.
The Company suspended the Claimant on the basis that the expose had tarnished the image and reputation. At the conclusion of the investigation, the Company decided that his recorded actions in the expose were extremely prejudicial to the interest of the Company and terminated him with immediate effect.
The Claimant stated that his dismissal was unfair on a number of reasons, namely that the recordings circulated had his image blurred and nothing in the footage could be traced back to the Company. As such, it was argued that the Company’s image could not be tarnished. The Claimant also alleged that his alleged sexual exploits as communicated to the journalist were merely fantasies, and there is no proof that such exploits did in fact take place.
Upon assessing the evidence, the Court held that due to the power of social media, there is a presumption that the public knows or could have known that the Claimant was working for the Company. The Company was also alerted to the Claimant’s action upon being contacted by the newspaper.
Given the senior position the Claimant, the Court held that he had a duty to safeguard the reputation of the Company at all times. As such, his dismissal was just and with cause.
The impact of Syed Naharudin
To most people, it should seem obvious that an employer should be allowed to terminate an employee if they are involved in sexual grooming, or any other sexual misconduct involving a child. However, there are many considerations that need to be taken into account from an employment law context. Grey areas often arise when, for example, such misconduct is based on allegations and not a criminal conviction (does the concept of “innocent until proven guilty” apply in termination case?), and where the misconduct, while clearly socially and morally repugnant, happens off-site and off working hours.
One of the takeaways from the case is the Industrial Court’s inclination to take into account an employee’s actions during off working hours as a terminable misconduct if its affects the image of the employer in the public’s eye. It broadens the spectrum for an employer to terminate an employee with questionable antics outside the office. However, the actions complained of must relate to the image of the company as a whole and proof of a negative impact must be evident prior to a dismissal.
With regards to the fact that the misconduct complained of is potentially criminal in nature, the Industrial Court noted that while there is no evidence that the police had ever taken a case against the Claimant, the Court was of the view that any police action is a separate matter and not relevant to the question of whether the Claimant was dismissed with just cause and excuse. The Industrial Court held that the Company does not, prior to dismissal, need to prove that the Claimant’s actions were criminal in nature, or that the charges were proven on a standard that befits a criminal case. The Industrial Court took cognizance of the definition of sexual grooming under the SOAC 2017, and the seriousness of the punishment thereunder.
For further information, please contact:
Donovan Cheah, Partner, Donovan & Ho
donovan@dnh.com.my
