Draw the Line on Sexual Harassment

Selvamalar Alagaratnam and Lee Mei Hooi examine the legal framework dealing with sexual harassment in Malaysia.

On 5 October 2017, the New York Times published an exposé on allegations of sexual harassment spanning several decades against Hollywood producer, Harvey Weinstein.
The article opened the floodgates on allegations of sexual harassment and assault. Countless others stepped forward to expose their sexual harassers, mostly powerful men in the entertainment industry. The popularisation of the hashtag #metoo on various social media platforms further led to a global phenomenon of women sharing their experiences of sexual harassment. Within a few short weeks, the number of people accusing Harvey Weinstein of sexual harassment has grown to over 80. Many other public entertainment and political figures are also caught up in similar sexual harassment or assault scandals, including UK Defence Secretary Michael Fallon, A-list Hollywood actor Kevin Spacey and renowned Disney animation chief John Lesseter.
A notable trend among the numerous sexual harassment allegations is the existence of a power imbalance between harasser and victim in work-related contexts. In Harvey Weinstein’s case, many actresses, existing and aspiring alike, stated that they did not step forward as they feared that doing so would mean the end of their careers. Others left acting entirely following their experiences. While sexual harassment can occur at any time and in any place, the workplace as the playground of power undeniably creates an environment which is especially conducive to sexual harassment.
Despite numerous calls for the same, Malaysia, unlike many other countries, does not have any legislation dealing specifically with sexual harassment. Instead, our laws are scattered, with the relevant statutes addressing issues in a limited way and the gaps dealt with in a patchwork fashion by case law and voluntary guidelines.
Due to this, the legal definitions of sexual harassment differ depending on the circumstances the relevant laws are meant to address. For instance, Malaysia does not in fact have clear criminal laws dealing with sexual harassment. Instead, sexual harassment falls under section 509 of the Penal Code, where the insulting of one’s modesty by way of words, sounds, gestures, exhibitions of objects or the intrusion of privacy, is a crime punishable by imprisonment of five years or a fine.
Meanwhile, in the recent case of Mohd Ridzwan bin Abdul Razak v Asmah binti Hj Mohd Nor [2016] 4 MLJ 282 (“Mohd Ridzwan”), the Federal Court recognised the tort of sexual harassment as a valid cause of action in Malaysia. Suriyadi FCJ described the ingredients of “sexual harassment” as “the existence of a persistent and deliberate course of unreasonable and oppressive conduct targeted at another person … calculated to cause alarm, fear and distress to that person” which is tainted with “sexual hallmarks”. Mohd Ridzwan is a ground-breaking decision which opens the doors to individual plaintiffs who wish to bring civil suits against the perpetrators of sexual harassment.
From an employment perspective, Part XVA, introduced into the Employment Act 1955 (“Part XVA”) on 1 April 2012, deals specifically with sexual harassment in the workplace, and defines it as “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”. This definition echoes the longer, more comprehensive description of sexual harassment in the Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace (“Code”), which is a voluntary code issued by the Malaysian Government in 1999 for the purposes of providing guidance to employers in dealing with sexual harassment in the workplace.
The Code, which was also referred to in Mohd Ridzwan, divides sexual harassment into sexual coercion (sexual harassment which may reasonably be perceived as placing a condition of a sexual nature on one’s employment) and sexual annoyance (sexual harassment which may reasonably be perceived as an offence, humiliation or a threat, but has no direct link to one’s employment). The Code further clarifies that sexual harassment could potentially take place even outside the workplace, such as at work-related social functions or conferences, over the phone, through electronic media; and that such harassment could be verbal, non-verbal, visual, psychological or physical.
An obligation to investigate
Part XVA, which applies to all employees irrespective of their wages, creates a complaints mechanism for sexual harassment for employees in the workplace. Specifically, it requires employers to inquire into any complaints relating to sexual harassment made by an employee against another employee or an employer, and vice versa.
Following the inquiry, if the employer is satisfied that sexual harassment is proven, the employer is required to take disciplinary action against the accused employee which may include dismissal. If the accused person is not an employee, the employer must recommend that the person be brought before an appropriate disciplinary authority.
Part XVA further provides that the Director General of Labour (“Director General”) may receive sexual harassment complaints and direct an employer to inquire into such complaints. In this event, the employer is required to inquire into the complaint and submit a report of the inquiry to the Director General within 30 days. However, if the employer is a sole proprietor, the Director General is to inquire into the complaint himself.
Failure to inquire into a complaint or to submit a report of inquiry to the Director General where required amounts to an offence by the employer.
Constructive dismissal
In addition to Part XVA, an employee who experiences sexual harassment at work, either at the hands, or due to the inaction, of an employer, may make a claim for constructive dismissal under section 20 of the Industrial Relations Act 1967 (see, for instance, the High Court case of Sitt Tatt Berhad v Flora a/p Gnanapragasam & Anor [2006] 1 MLJ 497, where an employee succeeded in her claim for constructive dismissal following an employer’s inaction to address her complaints of sexual harassment by her superiors). This recourse stems from the principle that the employer owes a duty to the employees to provide a safe and conducive workplace.
Investigating and dismissing an employee
While the Employment Act 1955 places upon the employer an obligation to investigate sexual harassment complaints, the process and procedure are left largely to the employer’s discretion. The Ministry of Human Resources proposed the Employment (Procedure to Inquire into Complaints of Sexual Harassment) Regulations in 2015 but it has since been put on hold, probably pending feedback and revisions.
Until such time that the regulations are brought into force, the Code remains the only guidance available. The Code, among others, recommends that:
  1. A policy statement on sexual harassment be issued by the employer, containing a clear definition of sexual harassment;

  2.  A complaints/grievance procedure (including guidelines for reporting, investigating and appealing a sexual harassment complaint) be established - due to the sensitive and personal nature of sexual harassment, this procedure should be separate from the employer’s normal complaints/grievance procedure;

  3.  The employer takes measures to protect victims from further embarrassment in the course of reporting and investigation;

  4.  The disciplinary rules and penalties in the event an employee is found guilty of sexual harassment be made clear; and

  5.  The employer organise programmes and talks to raise awareness of sexual harassment amongst employees.
As a general rule, there is no question that sexual harassment amounts to serious misconduct justifying dismissal should it be proven. The Industrial Court in Shaun Khee Tuck Keat v Carigali Hess Operating Company Sdn Bhd [2016] 4 ILR 112, in finding that an employee dismissed for sexual harassment was dismissed with just cause or excuse, held that “harassment is a very serious misconduct and in whatever form it takes, it cannot be tolerated by any employer”.
However, like any other dismissal, employers should ensure that all their records and documentation are in order so that they are able to prove that an employee was dismissed for just cause or excuse, failing which the employee may succeed in an unjust dismissal action. In particular, for cases involving sexual harassment, the Industrial Courts have often held that there is a specific requirement for the complainant’s evidence to be corroborated.
An oft-cited case in this respect is Jennico Associates Sdn Bhd v Lilian Therera De Costa & Anor [1998] 3 CLJ 583 (“Jennico Associates”). In Jennico Associates, an employee, Lilian Therera, alleged constructive dismissal against her employer after complaining of sexual harassment on two different occasions by the managing director, Zulkifli, to whom she reported.  She had complained of him kissing her and telling her that he wished he could make her his second wife as well as molesting her from behind. The alleged incidents occurred only in the presence of Lilian and Zulkifli, with no witnesses present. However, Lilian did not lodge a police report, but informed her husband and friends weeks after the incidents.
The High Court ultimately found that Lilian’s evidence was insufficient to support her claim of constructive dismissal. In considering the evidence, the judge opined that the evidence of a complainant in a sexual case is similar to an accomplice’s evidence and stated:
“… an allegation of sexual harassment must be adequately corroborated. To rely on the uncorroborated evidence of the complainant alone would be very dangerous …”
As Lilian’s evidence lacked any independent corroboration and had “numerous material contradictions”, and the Industrial Court had not warned itself of the danger of making a finding on a claimant’s uncorroborated evidence, the High Court found that the Industrial Court had wrongly allowed Lilian’s claim and therefore quashed the Industrial Court award.
Jennico Associates is a notable case which is often relied upon or referred to by the Industrial Court in respect of the need for corroboration of evidence of sexual harassment. It has been applied not only in cases where constructive dismissal is alleged, but also where employees have been dismissed for misconduct (as the same burden that applied to Lilian in that case would apply to an employer who dismisses an employee for sexual harassment).
In Mohd Nasir Atan v Bank Islam Malaysia Berhad [2015] 2 LNS 0871, the Industrial Court Chairman, while recognising the difficulty of proving sexual harassment due to its personal nature where such behaviour often occurs in the absence of a third party, nonetheless applied Jennico Associates in requiring corroborative evidence, providing examples such as CCTV recordings, medical reports, and evidence on the behaviour of the victim during or following the incident. Due to this, the Court found that the employer was not able to prove that the sexual harassment had occurred on the balance of probabilities and accordingly found the claimant’s dismissal to be without just cause or excuse. The Industrial Court’s findings were subsequently upheld by the High Court.
The above cases were all decided on their own facts where the Courts for various reasons had found the evidence of the sexual complainant unreliable on its own. While it would be prudent for an employer to ensure that it has clear and corroborated evidence of a sexual harassment complaint, the lack of independent corroboration by itself should not prevent an employer from dismissing an employee if the employer is convinced of the employee’s guilt after due investigation. This is especially so in light of the recent Federal Court decision in Mohd Ridzwan, which specifically addressed the issue of corroboration and stated that “there is no hard and fast rule that in a tort of sexual harassment case there must be corroboration, though like in any civil case the rule of evidence must be stringently upheld”, and that “[t]o demand corroboration, just because there exists some sexual flavor in the complaint will cause the harassed person to be, more often than not helpless, as most of the evidence will consist of the words of the harasser vis a vis the victim. Although this was stated in respect of the tort of sexual harassment rather than in an employment context, the same principle arguably would apply to Industrial Court matters involving sexual harassment as the same standard of proof (i.e. the balance of probabilities) applies to both.
With current events now shining a light on the prevalence of sexual harassment—a recent survey by BBC showed that more than half of women and one-fifth of men had experienced being sexually harassed at work—change is imminent on the horizon. Now, more than ever, employers should take cognisance of the duty they owe to their employees and the damage to their own reputation if such matters are not dealt with in a timely and proper manner. Pending further development in the law, the adoption of the Code would be a good first step.