Authored by Tiffany Ding and Tan Yi Xuan
Sexual harassment refers to any unwanted or unwelcome conduct, whether verbal or physical that is sexual in nature which may cause the person being harassed to feel uncomfortable, humiliated or offended. Sexual harassment in workplace is not uncommon in Malaysia. According to the statistics from the Royal Malaysian Police (PDRM), there were 1,218 reported sexual harassment cases between the year 2013-2017, 79 percent of the cases involved women while 21 percent involved male victims.
Section 509 of the Malaysia Penal Code governs sexual harassment and it criminalizes whoever that intends to insult the modesty of the person. Words, gesture, or objects which intrudes upon the privacy of such person is also considered as harassment. While the provisions under the Malaysian Penal Code provide some protection for sexual harassment, it only provides minimal protection in terms of sexual harassment in the workplace.
The Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace.
In 1999, the Ministry of Human Resource published The Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace (“The Code of Practice”).
Sexual harassment is defined in The Code of Practice, in particular, under Article 4 which states the following:
“Any unwanted conduct of a sexual nature having the effect of verbal, non-verbal,
visual, psychological or physical harassment: (i) that might, on reasonable grounds,
be perceived by the recipient as placing a condition of a sexual nature on her/his
employment; or (ii) 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 her/his employment.”
The Code of Practice provides guidelines for employers to set up their own mechanism and framework to handle sexual harassment matters in the workplace. However, it is merely guideline, the company is not obliged to follow the guidelines and it has no force of law.
The Employment Act 1955
In 2012, the Employment Act 1955 was amended to include Part XVA which governs sexual harassment in workplace. Generally, the Employment Act 1955 is only applicable to workers whose earnings do not exceed RM 2,000.00 but Part XVA of the Employment Act 1955 applies to all employees in Peninsular Malaysia and the state of Labuan. Whereas employees in East Malaysia are governed by their Labour Ordinance respectively.
For the purpose of this article, definition of sexual harassment in workplace is defined under Section 2 of the Employment Act 1955 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.”
Section 81A to Section 81G of the Employment Act 1955 outline the manner in which employers should deal with complaints of sexual harassment in workplace. The employers are required to inquire into any complaint made by their employees. If the employer is satisfied that sexual harassment has been proven, they shall take disciplinary actions which may include dismissal, downgrading or other lesser punishment the employer deems fit, and where the punishment is suspension without wages, it shall not exceed two (2) weeks. If the employer refuses to inquire, the employer shall, not later than thirty (30) days after the date of receipt of complaint, inform the employee the reason of refusal. Upon failure to do so, the employer shall be liable to a fine not exceeding RM10,000.00.
That said, the relief provided under the Employment Act did not provide employee who is struggling from such harassment, sufficient security, remedy and safeguards from future potential harassment or retaliation.
Case Law Development
In the case of Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor, the Federal Court decided to import the tort of harassment, including sexual harassment into Malaysia’s legal and judicial system.
In the said case, the victim was the subordinate of the perpetrator and has made complaint of sexual harassment against the perpetrator which the latter denied and subsequently filed a claim against the victim for declaration that he has not harassed her and that she had defamed him. The Federal Court agreed with the High Court and Court of Appeal to dismiss the perpetrator’s appeal on the grounds that there was ample evidence to show that the perpetrator had uttered vulgar and sexually rude remarks, either directly or indirectly in the victim’s presence, knowing she would hear it. The Federal Court affirmed the decision of the High Court which had granted general and aggravated damages amounting to RM120,000.