A commentary on the Anti-Sexual Harassment Bill 2021

The Anti-Sexual Harassment Bill 2021 (“the Bill”), first tabled on 15 December 2021, was passed by the Dewan Rakyat (House of Representatives) on 20 July 2022 after a heated debate that witnessed (ironically) sexist remarks being hurled in raised voices across the floor of the august House. 
As the Bill continues its legislative journey to the Dewan Negara (Senate), we shall examine the key features of this groundbreaking legislation.
In gist, the Bill allows a sexual harassment survivor to seek compensation or damages from the perpetrator by making a complaint to the Tribunal of Anti-Sexual Harassment (“Tribunal”). The Bill makes non-compliance of an award handed down by the Tribunal a criminal offence. Broadly, the Bill establishes:
1. a Tribunal for Anti-Sexual Harassment; and
2. the office of the Administrator of Anti-Sexual Harassment.
Key features of the Bill include:
1. Definition of Sexual Harassment
The Bill defines sexual harassment as “any unwanted conduct of a sexual nature, in any form, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is reasonably offensive or humiliating or is a threat to his well-being”.1
This definition is similar to, but is slightly wider, than the definition in the Employment Act 19552 (“EA 1955”), due to the addition of the word “reasonably”.
2. Tribunal for Anti-Sexual Harassment and its composition
The Bill establishes the Tribunal3 whose members will be appointed by the Minister of Women, Family and Community Development (“Minister”) and consist of not less than 12 members, of whom at least seven are members of, or have held offices in, the Judicial and Legal Service, or are advocates and solicitors of not less than seven years standing (provided that the President and Deputy President shall be appointed from amongst members of the Judicial and Legal Service), and at least five are to have knowledge of or practical experience in matters relating to sexual harassment. The Bill does not provide how a person who has knowledge of or practical experience in matters relating to sexual harassment is to be determined, save that the determination will be made by the Minister.4 
It is interesting to note that the Bill provides that each sitting of the Tribunal shall comprise of a three-member panel, amongst whom at least one shall be a woman.5
3. Jurisdiction of the Tribunal
The Bill confers jurisdiction on the Tribunal to hear and determine any complaint of sexual harassment made by any person.6 As there is no provision for a person to make a complaint of sexual harassment on behalf of another person, it is unclear whether this is permitted under the Bill.
The Bill applies prospectively in this respect as the Tribunal’s jurisdiction to hear complaints is limited to allegations of sexual harassments which occur after the coming into operation of the Anti-Sexual Harassment Act; and the time limited to bring such a complaint is governed by Limitation Act 1963 i.e. six years.
It is pertinent to note that the Bill purports to exclude the jurisdiction of the court when a complaint of sexual harassment is lodged with the Tribunal.7 This is subject to several exceptions, the main being where the complaint involves conduct constituting a crime under the provision of any written law.
The effect of this provision is that, if a survivor of sexual harassment lodges a complaint with the Tribunal, he/she is barred from litigating the same matter in a court (even if the issue of sexual harassment only arose during the course of the hearing before the court as opposed to being the cause of action itself). The survivor will therefore not be able to have recourse to both the Tribunal and the court.
In keeping with the principle of not limiting the administration of criminal justice, the complainant is not precluded from lodging a police report notwithstanding the making of the complaint of sexual harassment to the Tribunal.
4. Hearing in the Tribunal
As a general rule, the Bill does not allow the parties to be represented by legal representatives at a Tribunal hearing unless the Tribunal is of the opinion that the complaint involves complex issues of law; provided that if one party is allowed to be represented by an advocate and solicitors, the other party shall also be so entitled.8 A party who is a minor or a person under disability may be represented by his next friend or guardian ad litem.9
The Bill states that all Tribunal hearings shall be closed to the public.10
In addition, the Bill vests the Tribunal with the power to inter alia:  
a) determine its own procedures as it deems fit;
b) make an interlocutory order; and
c) summon parties to the proceedings or any other person to attend before the Tribunal to give evidence.11
  The Bill also stipulates that the standard of proof to be applied by the Tribunal shall be the balance of probabilities. 
5. Built-In Mechanism for Negotiation
A built-in negotiation mechanism is made available under the Bill whereby the Tribunal may assess and decide whether it should render assistance to the parties to negotiate a mutual settlement and where a settlement is achieved, to record the settlement which shall take effect as if it is an award from the Tribunal.12
6. Award of Tribunal
The Bill prescribes that where practicable, the Tribunal should make its award within 60 days from the first day of the hearing. The Tribunal may either dismiss the complaint as frivolous or vexatious, or make an award which may include:
a) an order for the respondent to the sexual harassment complaint to issue a statement of apology to the complainant;
b) an order for payment by the respondent as compensation or damages to the complainant not exceeding RM250,000 for any loss or damage suffered by the complainant; and
c) an order for any of the parties to attend any programme as the Tribunal thinks fit.13
  An award made by the Tribunal is final and binding on all parties to the proceedings and is enforceable as if it is a court order.14
7. Non-Compliance of the Award
The Bill renders non-compliance of the award after 30 days an offence which, upon conviction, is punishable with a fine (in the amount equivalent to two times the amount of damages awarded by the Tribunal if any compensation or damages is ordered or in the amount not exceeding RM10,000 if no compensation or damages was ordered by the Tribunal) or to imprisonment for a term not exceeding two years or to both.15 Further, the continuing non-compliance of the award attracts a daily fine of RM1,000.
8. Challenging the Award
The sole ground on which the Tribunal’s award may be challenged is that there is “serious irregularity affecting the award”.16 Serious irregularity is defined under the Bill as:
a) failure of the Tribunal to deal with all relevant issues that were put to it; or
b) uncertainty or ambiguity as to the effect of the award,
  which has caused substantial injustice to the party challenging the award (“applicant”).
The challenge of the award is to be made to the High Court.17 However, the Bill does not prescribe a time limit for the applicant to give notice of his/her challenge. This omission should be rectified.
If the applicant is successful in challenging the award, the High Court may remit the award to the Tribunal for reconsideration or set the award aside.18
9. Administrator of Anti-Sexual Harassment
Apart from establishing the Tribunal, the Bill will introduce an office of the Administrator of Anti-Sexual Harassment (“Administrator”), whose functions and powers include formulating policy, issuing guidelines, promoting activities and administering any other matter relating to prevention or awareness of sexual harassment.19 
The Bill will introduce a new quasi-judicial body to deal specifically with sexual harassment complaints which can be brought by any person. This is likely to result in a complete change in the manner sexual harassment complaints are dealt with in the future. The fact that a hearing before the Tribunal will be conducted behind closed doors will be an added advantage to survivors of sexual harassment who are traumatised and wish to avoid the stigma associated with the harassment, or who for any reason wish to keep their identity confidential. It is also beneficial to persons accused of perpetrating the harassment as it protects their reputation which could otherwise be tarnished regardless of the findings of the Tribunal.
This is a positive development and is in stark contrast with the recent amendments to the EA 1955 under the Employment (Amendment) Act 2022 (“E(A)A 2022”) (which reportedly, will come into operation on 1 September 202220) that only includes a cosmetic change of requiring the employer to exhibit a notice at the place of employment to raise awareness of sexual harassment.21 Further, the amendments under the E(A)A 2022 are likely to limit the applicability of the sexual harassment complaint mechanism under the EA 195522 only to employees who fall within the definition of “employee” under the EA 1955.23 The Bill may be able to compensate for the shortcomings of the amendments under the E(A)A 2022 and provide a legal recourse to all levels of employees who have experienced sexual harassment in a workplace, and in fact is not limited to harassment in the workplace but all aspects of everyday living.
The expansion of the definition of sexual harassment to conduct that is “reasonably offensive or humiliating will introduce an objective element and allows changing societal norms to be accommodated.
Since the landmark Federal Court decision of Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor [2016] 4 MLJ 282, a sexual harassment survivor now has the option of commencing a tortious claim in the civil court. The establishment of the Tribunal provides an alternate course of action.
While the Tribunal may offer a speedier outcome, the complainant is not allowed to be represented by a legal representative during the hearing before the Tribunal unless the matter involves complex issues of law. The lack of an automatic right to legal representation may prove a deterrent for a survivor of sexual harassment who does not wish to face the perpetrator or who is not equipped to manage the different aspects of a hearing without legal counsel.
The exclusion of the jurisdiction of the courts also causes complications. One immediate difficulty that may be envisaged is a situation where sexual harassment forms the basis of a representation of dismissal without just cause or excuse pursuant to section 20 of the Industrial Relations Act 1967. Currently, an employee whose complaint(s) of harassment is/are not properly addressed may consider his/her contract of employment to be breached and on that ground initiate a constructive dismissal action which will be heard and disposed of by the Industrial Court. The Industrial Court is only empowered to grant backwages together with reinstatement to the former employment or compensation in lieu of reinstatement. In the Industrial Court, the survivor has no recourse to damages from the perpetrator. The right to make a complaint to the Tribunal to the exclusion of all other recourse would force a survivor of harassment in the workplace to make the difficult choice between pressing his/her rights as an employee pursuant to the jurisprudence of employment law or seeking damages (which in any event is limited to RM250,000) against the perpetrator via the Tribunal but not both, when in fact the complaint is vastly different – in the former case, the respondent is the employer who is accused of not protecting the employee whereas in the latter case, the respondent is the perpetrator of the harassment. It is suggested that this shortcoming be overcome by allowing the sexual harassment survivor to pursue his/her claim in the Industrial Court as well as under the proposed new law.
The introduction of the office of the Administrator is likely to have no real effect in combating sexual harassment as the functions of the Administrator could be undertaken by the Minister or delegated to an officer from the Ministry.
Lastly, there are concerns with leaving complaints of sexual harassments solely to the Tribunal particularly since the Tribunal is allowed to set its own procedures, as sexual harassment claims are likely to involve evaluation of evidence which may be better dealt with by a judge.
Commentary by Selvamalar Alagaratnam (Partner) and Teng Wei Hun (Associate) of the Employment Law Practice Group of Skrine.

1 Clause 2 of the Bill.
2 Section 2 of the 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”.
3 Clause 3 of the Bill.
4 Clause 4 of the Bill.
5 Clause 12 of the Bill.
6 Clause 7 of the Bill read together with the Amendment in Committee to the said clause.
7 Clause 8 of the Bill.
8 Clause 13(2) of the Bill read together with the Amendment in Committee to the said clause.
9 Clause 13(3) of the Bill.
10 Clause 14 of the Bill.
11 Clause 9 of the Bill.
12 Clause 16 of the Bill.
13 Clause 19 of the Bill.
14 Clause 22 of the Bill.
15 Clause 21 of the Bill.
16 Clause 23(1) of the Bill.
17 Ibid.
18 Clause 23(2) of the Bill.
19 Clauses 24 and 25 of the Bill.
20 According to the Deputy Minister of Human Resources, Datuk Awang Hashim, the E(A)A 2022 which was gazetted on 10 May 2022, will come into operation on 1 September 2022 (see ‘Employees can apply for flexible work arrangements, says Awang Hashim’, Star Online, 23 June 2022).
21 Section 81H of EA 1955 (introduced pursuant to the E(A)A 2022).
22 Sections 81A to 81E of the EA 1955.
23 Employees whose wages do not exceed RM2,000 a month; or irrespective of the amount of wages earned in a month, (a) are engaged as manual labourers or supervisors of manual labourers; (b) are engaged in the operation or maintenance of any mechanically propelled vehicle operated for the transport of passengers or goods or for reward or for commercial purposes; or (c) are engaged as a domestic servant.

This alert contains general information only. It does not constitute legal advice nor an expression of legal opinion and should not be relied upon as such. For further information, kindly contact skrine@skrine.com.