3 November, 2017
IN THIS ARTICLE, JAMIE GOH MOON HOONG EXAMINES THE COURT OF APPEAL’S INTERPRETATION OF SEXUAL HARASSMENT IN THE CASE OF MD NOR KASSIM V MALAYAN BANKING BERHAD.
Introduction
In the case of Md Nor Kassim v Malayan Banking Berhad[1], the Court of Appeal allowed an appeal by a former bank manager who was sacked for alleged sexual harassment of his subordinate.
Section 2 of the Employment Act 1955 (“EA 1955”) 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.”
The Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace (“the Code”), on the other hand, defines “sexual harassment” in Article 4 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;
- that might, on reasonable grounds, be perceived by the recipient as an offence humiliation [sic], or a threat to her/his well-being, but has no direct link to her/his employment.”
Facts
On 28 January 2010, Malayan Banking Berhad (“MBB”) received a verbal report from its staff, the complainant (“Rohaida binti Kamarudin”), that Md Nor Kassim had sexually harassed her. The alleged acts of sexual harassment were as follows:
- Md Nor Kassim had on several occasions sent text messages containing inappropriate words such as “ILU” which stands for “I love you”; and
- the act of Md Nor Kassim lending a book entitled 100 Rahsia Kehebatan Lelaki (“the Book”) to Rohaida binti Kamarudin.
A domestic inquiry was convened and the panel of domestic inquiry found Md Nor Kassim guilty of grave misconduct and dismissed him from service with effect from 22 August 2010.
Dissatisfied with the dismissal, Md Nor Kassim referred the matter to the Industrial Relations Department which in turn referred the dispute to the Minister who then referred the dispute to the Industrial Court for resolution.
The Industrial Court, after hearing the matter, ruled that Md Nor Kassim was dismissed without just cause or excuse and ordered him to be reinstated to his former position.
MBB subsequently filed an application for judicial review to the High Court seeking an order ofcertiorari to quash the Industrial Court’s award.
The decision of the High Court
The learned High Court Judge allowed the application for judicial review and issued a writ ofcertiorari to quash the Industrial Court’s award. The High Court held that Md Nor Kassim himself admitted to certain alleged acts of misconduct in that several comments that he had made to his employees via text messages were inappropriate and of an intimate or personal nature with sexual connotations.
The High Court was of the view that it was gross misconduct and in bad taste for a male superior officer to bring the Book to the office and hand it over to a married female employee under his supervision. The High Court further held that whether or not the Book was read by Rohaida binti Kamarudin or kept by her for one week did not make the offence or misconduct any less grave.
The decision of the Court of Appeal
On appeal, the Court of Appeal set aside the High Court’s order and reinstated the Industrial Court’s award. The Court of Appeal pointed out that it would be difficult to conclude that the act of lending the Book to Rohaida binti Kamarudin would amount to an act of sexual harassment when she did not register any resentment or discomfort upon receiving the Book.
The Court of Appeal also pointed out that Rohaida binti Kamarudin kept the Book for one week and had shared the contents of the Book with a witness, even though she had denied reading the Book. The Court of Appeal agreed with the Industrial Court chairman in concluding that if Rohaida binti Kamarudin had not been interested in the Book she could have easily turned down the offer by Md Nor Kassim.
On the alleged text messages of obscene nature, the Court of Appeal said that the learned Chairman’s finding was that it had occurred between 2008 and 2009 and the text messages which contained the abbreviation “ILU” that stood for “I Love You” was found to be motivational in nature. The learned Chairman found that there was no evidence to suggest that the same text message was not sent to any other subordinates and that Rohaida binti Kamarudin was the only recipient of such a text message.
The Court of Appeal held that the learned chairman’s conclusions were findings of fact and done based on the credibility of the witnesses.
Conclusion
The decision of the Court of Appeal signifies an inclination towards a more restrictive interpretation of the definition of sexual harassment. In affirming the Industrial Court’s decision, the Court of Appeal seems to suggest that Md Nor Kassim’s conduct was justified based on the delay in Rohaida binti Kamarudin’s reaction towards Md Nor Kassim’s actions.
Further, to conclude that the objectionable messages did not constitute sexual harassment simply because there was no evidence of similar text messages being sent by Md Nor Kassim to other subordinates seems to suggest that a sexual harassment complaint cannot be based on Rohaida binti Kamarudin’s perception of the harasser’s conduct towards her alone.
[1] [2017] 1 LNS 506
For further information, please contact:
Jamie Goh, Shearn Delamore & Co
jamie.goh@shearndelamore.com
