Employment & Industrial Relations
The Digital-Age Of Misconduct: The High Court Upholds Dismissal For Sexual Harassment Via WhatsApp messages.
In Madiahlagan A/L Sundaram v Lotuss Stores (Malaysia) Sdn Bhd (CIVIL APPEAL NUMBER: AA-16A-9-09/2023), the High Court on 9 January 2025 upheld the Industrial Court’s decision (Award No. 1921 of 2023), in ruling that a former employee’s (hereinafter referred to as “the Claimant”) dismissal on the ground of sexual harassment was with just cause and excuse.
The Claimant held the position of Senior General Manager. He was dismissed for sending inappropriate WhatsApp messages to subordinate employees, conduct that was deemed to amount to sexual harassment.
One of the main issues considered by the High Court was whether the Industrial Court had failed to consider that the evidence tendered was hearsay evidence and thus inadmissible. In this case, only the Area Business Partner was present in Court to testify on the case.
The Claimant raised the issue that no evidence or documentation was submitted to establish that the answers and signature in the interview notes belonged to the affected female subordinate. The Claimant further raised the issue that the affected female subordinate did not testify before the Industrial Court.
In affirming the Industrial Court’s decision, the High Court held that while corroborative evidence can enhance the credibility of sexual harassment claims, it is not an absolute requirement for establishing such torts.
The High Court took into account the Claimant’s admission in sending the WhatsApp messages in question and ruled that electronic records in the circumstances were sufficient.
The key takeaway from this case is the importance of preserving electronic evidence in instances of misconduct, especially screenshots and transcripts of chat logs, where applicable.
