Lee Li Hoong discusses the impending ground-breaking amendments to the Employment Act
Of the various amendments proposed in the Employment (Amendment) Bill 2010 (“the Bill”), the proposed introduction of a new Part XVA to deal with complaints of sexual harassment is most certainly welcomed and long overdue.
Part XVA essentially provides for the establishment of a procedure for dealing with complaints of sexual harassment and inquiry into such complaints.
At present, there are no laws in Malaysia that deal specifically with sexual harassment in the workplace.
Prior to the introduction of The Code of Practice on the Prevention and Eradication of Sexual Harassment in the Work Place (“the Code”), there was only one law in existence that came close to dealing with the issue of sexual harassment in Malaysia, Section 509 of the Penal Code.
Section 509 of the Penal Code provides:
"Whoever, intending to insult the modesty of any person, utters any words, makes any sound or gesture or exhibits any object, intending that such word or sound shall be heard, or such gesture or object shall be seen by such person, or intrudes upon the privacy of such person, shall be punished with imprisonment for a term which may extend to 5 years or with fine, or with both".
Sexual harassment cases were thus handled by the police. To curb sexual harassment in the workplace, it was obvious that employers had to play a role. This led to the introduction of the Code by the Ministry of Human Resources in 1999. The Code serves as a guide to employers for establishing and implementing a preventive and redress mechanism for sexual harassment.
The Code encourages employers to establish (i) a policy statement prohibiting sexual harassment in the organisation; (ii) a clear definition of sexual harassment; (iii) a complaints and grievance procedure; (iv) disciplinary rules and penalties against the harasser and against those who make false accusations; (v) protective and remedial measures for the victim; and (vi) promotional and educational programmes to explain the company’s policies on sexual harassment and raise awareness of sexual harassment and its adverse consequences.
Even as early as May 2000 however, women’s rights organisations nationwide have called upon the Government to enact a law on sexual harassment. It was felt that a law on sexual harassment ought to be enacted to ensure that all companies implement the Code as opposed to the current situation wherein the Code is implemented only on a voluntary basis. According to the Malaysian Employers Federation, only 400 of 450,000 registered and active companies have adopted and implemented the Code (The Star Newspaper, 1 August 2010).
The Government is trying to answer those calls with the Bill which was tabled for its first reading in the Dewan Rakyat in July 2010 and will be tabled for its second and third readings at the end of this year.
THE PROPOSED PART XVA
Section 2 of the Employment Act 1955 is to be amended by introducing a new definition which 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 definition of “sexual harassment” under the Bill is materially different from the definition of “sexual harassment” under the Code, which reads:
“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.”
The definition of sexual harassment under the Code recognises 2 forms of sexual harassment - sexual coercion and sexual annoyance. Most jurisdictions have identified these 2 basic forms of sexual harassment. The proposed definition of sexual harassment under the Bill however does not clearly include sexual coercion.
Another conspicuous omission from the definition of sexual harassment under the Bill is psychological harassment which is provided for under the Code.
To amount to sexual harassment under the Bill, the conduct must arise out of and in the course of a person's employment. In contrast, sexual annoyance under the Code need not be directly linked to an individual's employment. Considering that sexual harassment can occur outside the office and outside office hours, it is likely that the phrase “in the course of his employment” will have to be interpreted widely.
As a general rule, the Employment Act 1955 applies only to the categories of employees enumerated in Schedule 1 of the Act. However, the proposed Section 81G makes it clear that the provisions of Part XVA will apply to every employee employed under a contract of service.
The proposed Section 81B imposes a mandatory obligation on all employers to establish a procedure for dealing with complaints of sexual harassment, whether between employees, employers, and employer and employees, and to inquire into the complaint in a manner to be prescribed by the Minister of Human Resources.
If an employer refuses to inquire into the complaint, he must as soon as practicable, but no later than 30 days after the date of the receipt of the complaint, inform the complainant of the refusal and the reasons for the refusal in writing (proposed Section 81B(4)).
An employer may refuse to inquire into a complaint in 2 situations: if the complaint has previously been inquired into and no sexual harassment has been proven; or if the employer is of the opinion that the complaint of sexual harassment is frivolous, vexatious or is not made in good faith (proposed Section 81B(5)).
An employee who is dissatisfied with his employer's refusal to inquire into his complaint may refer the matter to the Director General of Human Resources ("Director General") who will review the matter and if he thinks the matter should be inquired into, direct the employer to do so; or if he agrees with the employer’s decision, inform the employee that no further action will be taken.
If having conducted an inquiry into a complaint of sexual harassment, the employer is satisfied that sexual harassment is proven, the proposed Section 81C prescribes the disciplinary actions that may be taken against the employee: dismissal without notice, downgrading or any other lesser punishment which the employer deems just and fit. Where the punishment imposed is suspension without wages, the proposed Section 81C expressly provides that such suspension may not be for a period of 2 weeks or more.
Employees may also make complaints of sexual harassment directly to Director General. The Director General is required to assess such complaints and may direct the employer to inquire into a complaint. Employers who are so directed must submit a report of the inquiry to the Director General within 30 days from the date of such direction. Where the complaint of sexual harassment is made against an employer who is a sole proprietor, the Director General is required to inquire into the complaint (proposed Section 81D).
If the Director General is satisfied that sexual harassment is proven against an employer who is a sole proprietor, the contract of service between such employer and the complainant is deemed to be broken, and the complainant is entitled to termination benefits and indemnity (in lieu of notice) provided for under the Act or contract of service, as the case may be (proposed Section 81E).
Any employer who fails to (a) establish a procedure for dealing with complaints of sexual harassment; or (b) inquire into complaints of sexual harassment; or (c) inform complainants of their refusal to inquire and reason for refusal; or (d) inquire into complaints when directed to do so by the Director General; or (e) submit a report of enquiry into sexual harassment to the Director General, commits an offence and shall, on conviction, be liable to a fine not exceeding RM10,000.00 under the proposed Section 81F. It remains to be seen whether this sanction is a sufficient deterrent against non-compliance with the proposed Part XVA.
The proposed amendments are certainly not the separate legislation that has been called for. They have also been criticized by some as being open to abuse, vague and inadequate.
The proposed Section 81C(b) provides that where the harasser is not an employee, the employer shall recommend that the harasser be brought before a disciplinary authority to which that person is subject. This may be impracticable as the harasser may be a supplier or customer of the employer (or an employee of such supplier or customer) who is not subject to any disciplinary authority. It is also unclear whether the proposed amendments will apply if a complaint is lodged by the victim's employer to the supplier or customer.
The proposed amendments also do not require the employer to take interim measures to protect the complainant and other parties concerned during the investigation of the complaint.
It is hoped that the shortcomings will be dealt with in time, through judicial decisions, further amendments or subsidiary legislation.
Notwithstanding the shortcomings discussed above, the proposed amendments are steps in the right direction as they ensure that employers can no longer turn a blind eye to complaints of sexual harassment in the workplace.
Ultimately, legislation alone will not eradicate sexual harassment and other efforts like education, training and outreach programmes are still necessary.
LEE LI HOONG (
Li Hoong is an Associate with the Employment and Industrial Relations Practice Group of SKRINE. She graduated from University of West England in 2006