Malaysia – Building a Respectful Workplace: Key Strategies To Address Sexual Harassment.

Introduction 

Sexual harassment has been a prevailing topic within the Malaysian workforce in recent years. This article will mainly focus on an employer’s duty to investigate complaints of sexual harassment and the possible vicarious liability that could arise out of it for failing to do so. Prior to 2012, there was no comprehensive law and/or regulation that outlines an employer’s duty to inquire into complaints of sexual harassment nor was there any redress mechanism that employees can resort to when faced with sexual harassment at their respective workplace. The only piece of document that could aid employers and employees in countering sexual harassment at their workplace was the Code of Practice on the Prevention and Eradication of Sexual Harassment (“the Code”) created in 1999 and published by the Human Resource Ministry. Yet, it was not mandatory for employers to adhere to the Code as it had no legal force. This was evident from a report disclosed by the Malaysian Employers Federation (“MEF”) in 2010 that merely 400 out of 450,000 registered and active companies had adopted the Code.¹ Employers were basically at free will whether or not to inquire into complaints of sexual harassment. 

Defining Sexual Harassment: The Code and The Employment Act 1955 

The infamous case of Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor [2016] 4 MLJ 282² was a testament to the lacuna in regulating sexual harassment at the workplace before 2012. At the time of filing of the action in 2011, no legislation had been promulgated on the law of sexual harassment. Though Part XVA was introduced in the Employment Act (“EA”) 1955³ in 2012 to address sexual harassment, the Federal Court (“FC”) could not rely on it when delivering its decision in 2016 as it did not address the rights and liabilities of the harasser and victim in a civil action.⁴ In defining what constitutes sexual harassment, the FC referred to both the Code⁵ and EA 1955.⁶ Article 4 of the Code⁷ defines sexual harassment as any unwanted conduct of a sexual nature having the effect of verbal, non-verbal, visual, psychological or physical harassment: 

1. That might, on reasonable grounds, be perceived by the recipient as placing a condition of a sexual nature on his/her employment; or 

2. 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/his employment. 

Article 4 of the Code divides sexual harassment into two categories which are Paragraphs (a) and (b) above. Paragraph (a) refers to situations where an employee faces direct negative consequences to their employment pursuant to being sexually harassed, which is known as sexual coercion. For example, nit-picking, low performance rating, or subsequent disciplinary action for resisting sexual advances by a superior which normally occurs in a quid pro quo situation. Paragraph (b) refers to situations where an employee suffers from sexual conduct that is offensive, hostile, or intimidating which causes a continuous intolerable working environment, which is known as sexual annoyance. Sexual harassment of this nature is usually committed by a co-employee of the same rank or a company’s client but carries no direct consequences to the victim’s employment. 

Under the EA 1955, Section 2⁸ 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. Based on Mohd Ridzwan bin Abdul Razak [2016] 4 MLJ 282, both the Code and EA 1955 have been adopted as an authoritative judicial interpretation of sexual harassment by the FC in introducing the tort of sexual harassment whereby the elements are: 

1. The occurrence of conduct that is sexual in nature; 

2. The conduct being unwanted; and  

3. The conduct is perceived as threatening the victim’s ability to perform his/her job. 

Employer’s Duty to Investigate Sexual Harassment Complaints 

Though the case above provides for a civil cause of action to hold a perpetrator of sexual harassment liable for their tortious conduct, it does not outline the employer’s duty to investigate a complaint of sexual harassment (“complaint”). This is where it is pertinent for Malaysian employers to abide by the EA 1955 and understand that a complaint can be brought by:⁹ 

1. An employee against another employee;  

2. An employee against any employer; and 

3. An employer against an employee. 

An employer is duty bound to investigate a complaint upon receipt thereof¹⁰ in accordance with the investigation procedures and processes of an internal anti-sexual harassment policy in place, if any. If the investigation shows that sexual harassment has been proved, an employer shall:¹¹ 

1. In the case where the perpetrator is an employee, take disciplinary action which may include the following: 

1. dismissing the employee without notice; 

2. downgrading the employee; or 

3. 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; and 

2. In the case where the perpetrator is a non-employee, recommend that the person be brought before an appropriate disciplinary authority to which the person is subject to. 

An employer who refuses to inquire into a complaint must inform the complainant of such refusal in writing within 30 days.¹² Grounds for such refusal to inquire can only be premised on two reasons: 

1. The complaint has previously been inquired into, and no sexual harassment has been proven; or 

2. The employer is of the opinion that the complaint is frivolous, vexatious or is not made in good faith. 

An employee or complainant that is dissatisfied with such refusal may refer the matter to the Director General of Labour (“DGL”)¹³ who may after reviewing the matter decide to:¹⁴ 

1. Direct the employer to conduct an inquiry if he thinks the matter should be inquired into; or 

2. Inform the employee or complainant that no further action will be taken if he agrees with the decision of the employer. 

Alternatively, an employee may make a complaint directly to the DGL instead of their employer.¹⁵ An employer is then obligated to investigate the complaint if directed by the DGL and submit a report within 30 days from the date of such direction.¹⁶ The DGL will directly investigate a complaint if the employer is a sole proprietor¹⁷ and convey his decision as soon as practicable.¹⁸ Sexual harassment proven against a sole proprietor allows an employee to terminate the contract of service without notice¹⁹ and entitles the complainant to: 

1. Wages as if notice of termination is given; and 

2. Termination benefits and indemnity. 

The DGL, however, can refuse to inquire a complaint whether made directly by an employee or against a sole proprietor similar to the two reasons that allows an employer to refuse investigation.²⁰ An employer commits an offence and is liable to a fine not exceeding RM50,000.00 for failure to: 

1. Investigate a complaint;²¹ 

2. Inform the complainant for refusal to investigate;²² 

3. Failure to investigate a complaint when directed by the DGL;²³ 

4. Submit an investigation report to the DGL when required.²⁴ 

Employers are statutorily required to display a notice to raise awareness on sexual harassment at the workplace.²⁵ Any undue delays in investigation could be perceived negatively and prejudicial for failing to observe adequate due process. Failure to ensure a workplace is safe and free from sexual harassment may expose the employer to claims of vicarious liability and/or constructive dismissal²⁶ by the employee.²⁷ On the brighter side, an employer bears no civil liability if an employee proceeds to resign and seek legal recourse without first lodging a complaint of sexual harassment allowing the employer to be put on notice.²⁸ Employers must also ensure that evidence adduced to prove sexual harassment against an employee in a domestic inquiry is corroborated or else a decision to dismiss an employee on grounds of sexual harassment is liable to be set aside.²⁹ 

Conclusion 

Sexual harassment is a real and present danger which exists in our society. Hence, employers must be equipped with the necessary know-how in tackling such workplace issues in ensuring a safe and conducive working environment for employees. Enforcing a comprehensive anti-sexual harassment policy detailing misconducts that constitutes sexual harassment together with a redress mechanism is the best form of action plan to deter and prevent sexual harassment at a workplace. Malaysian employers must realise that they have a duty to act in ensuring that their employees are protected from any form of sexual harassment. 

For further information, please contact:

Khairunnajihah Aqila Mohd Sofian, Azmi & Associates

najihah.aqila@azmilaw.com

1. Salleh Buang, ‘Time for a Sexual Harassment Act?’ (New Straits Times Online, 13 July 2017) https://www.nst.com.my/opinion/columnists/2017/07/256939/time-sexual-harassment-act accessed 25 October 2024. 

2. Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor [2016] 4 MLJ 282. 

3. Employment Act 1955. 

4. Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor [2016] 4 MLJ 282, 292. 

5. Code of Practice on the Prevention and Eradication of Sexual Harassment 1999. 

6. Employment Act 1955. 

7. Code of Practice on the Prevention and Eradication of Sexual Harassment 1999. 

8. Employment Act 1955. 

9. Employment Act 1955, s 81A. 

10. Employment Act 1955, s 81B (1). 

11. Employment Act 1955, s 81C. 

12. Employment Act 1955, s 81B(2). 

13. Employment Act 1955, s 81B(4). 

14. Employment Act 1955, s 81B(5). 

15. Employment Act 1955, s 81D(1). 

16. Employment Act 1955, s 81D(2). 

17. Employment Act 1955, s 81D(3). 

18. Employment Act 1955, s 81D(4). 

19. Employment Act 1955, s 81E(1). 

20. Employment Act 1955, s 81D(5). 

21. Employment Act 1955, s 81B(1). 

22. Employment Act 1955, s 81B(2). 

23. Employment Act 1955, s 81E(5)(a) or s 81D(2). 

24. Employment Act 1955, s 81D(2). 

25. Employment Act 1955, s 81H. 

26. Industrial Relations Act 196, s 20(1). 

27. Sitt Tatt Berhad v Flora a/p Gnanapragasam [2006] 1 MLJ 497. 

28. Aspirenxt Sdn Bhd v Nirmlina a/p Amal Das [2024] 10 MLJ 524. 

Md Nor bin Kassim v Malayan Banking Bhd [2017] 4 MLJ 71.