WORKPLACE SEXUAL HARASSMENT:

RIGHTS AND OBLIGATIONS OF

EMPLOYEES AND EMPLOYERS

CPD CAMP 2017

Janice Anne Leo

Partner,
Messrs Shook Lin & Bok
 What is Sexual Harassment?
Understanding the Code
Code of Practice on the Prevention and Eradication of Sexual Harassment
in the Workplace, in its Article 4 (the Code) defines sexual
harassment as:

Any unwanted conduct of a sexual nature having the effect of verbal,

non-verbal, visual, psychological or physical harassment;

(a) that might, on reasonable grounds, be perceived by the recipient as

placing a condition of a sexual nature on her/his employment; or

(b) 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.
 What is Sexual Harassment?
Understanding the Code

Categories of Sexual Harassment

Sexual annoyance sexually

Sexual Coercion - when sexual
harassment results in some direct
consequence to victims
employment
related conduct that is offensive,
hostile or intimidating to the
recipient and creates a bothersome
working environment of which the
recipient has to tolerate.
 What is Sexual Harassment?
Understanding the Code
5 forms of Sexual Harassment:
Verbal Harassment: offensive or suggestive remarks, jokes or
questions.
Non-Verbal/Gestural Harassment: sexual overtones when leering,
ogling, provocative behaviours and sign language denoting sexual
activity.
Visual Harassment: showing sex-based materials or pornographic
materials
Psychological Harassment: persistent and unwanted invitations and
communications
Physical Harassment: inappropriate touching, pinching, stroking,
hugging, kissing, fondling and etc.
 What is Sexual Harassment?
Understanding the Code
Hong Leong Bank Berhad v Adrian Joseph DCruz (2005) 2 LNS
1904:-
Facts: The Claimant was dismissed by the Company after a domestic
inquiry for nine charges of verbal sexual harassment as follows:

That you as the Assistant Branch Manager of Sitiawan Branch had

on 30 July 2002, at about 2:15 pm, in the Managers room, verbally
harassed Ms. Aw Mei Hwa, an Officer of the Branch by uttering to her
words to the following effect:
(a) That she wants to show you her breast and you could see her
breast;
(b) That she will open her legs wide whenever you are near her;
(c) That she did the above matters on purpose for you an other staff to
see;
 What is Sexual Harassment?
Understanding the Code
d) That you could tell the colour of her panties that she is wearing;
(e) That you have seen every part of her body;
(f) That you could tell what colour is her nipple;
(g) That she has very high urge for sex;
(h) That you challenged her to put her hand inside the pants of
other male staff; and
(i) That you have alleged that she has affairs with other guys.

Your conduct as above tantamount to sexually harassing Ms. Aw Mei Hwa

and unbecoming of you as an employee of the Bank.
 What is Sexual Harassment?
Understanding the Code
Held: The admission of the employee that he had uttered the words as
contained in the charges is consistent with what amounts to sexual
harassment as explained by Article 4 of The Code.

It was further quoted from the above case that;

In any society such conduct by the Claimant does certainly warrant

instant dismissal. Society does not tolerate such behaviour. The
message to be passed down is that if a person sexually harasses another
person at a work place, that person can expect instant dismissal even if
that person has had a good track record.
 What is Sexual Harassment?
Understanding the Code
The Code encourages the establishment of preventive mechanisms at
the enterprise level to combat sexual harassment in the workplace.
Elements of a comprehensive in-house mechanism outlined by the
Code include:

policy statement by the Management to the employees

prohibiting sexual harassment in the organization.
a clear definition of sexual harassment to ensure that
employees are aware of unwelcomed and offensive conducts and
attitudes.
What is Sexual Harassment?
Understanding the Code
a complaints/grievance procedure to deal with the problem
when it arises
enforcement of disciplinary rules
adequate measures to ensure maximum confidentiality and
sufficient remedial measures for victim
promotional and educational programs to raise awareness
 What is Sexual Harassment?
Employment Act 1955
Sexual Harassment as defined by Section 2 of the Employment Act
1950:

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 above provision was incorporated in the recent amendments to the

Employment Act 1950 in 2012.
 Case Analysis What constitute
Sexual Harassment?
In Varitronix (M) Sdn Bhd v R. Thandavanaiker P
Raman (2004) 3 ILR 426, the court held that the conduct
of a male worker touching the genital of another male co-
worker and rubbing his chest, witnessed by two other
witnesses, constitutes sexual harassment.

In Dzulkifli Ibrahim v Tenaga Nasional Berhad (2013) 2

ILR 153, the act of touching the shoulder, kissing the cheek
and grabbing the breast of another co-worker were held to
be sexual harassments, justifying the Companys decision
to terminate the employees services for serious
misconduct.
 Case Analysis What constitute
Sexual Harassment?
In Md. Salehuddin Othman v New Straits Times Sdn. Bhd. (2013) 2
LNS 0568, the court held the following acts to constitute sexual
harassment:
Wrapping his arm around a female co-worker and clasping her hand
against her free will and consent
Holding the hand of a female co-worker and stroking her arm without
her free will and consent
Patting the buttock of a female co-worker against her free will and
without her consent
Massaging the shoulder of a female co-worker against her free will and
without her consent.
Putting his hands around the waist of a female co-worker against free
will and without her consent.
 Case Analysis What constitute
Sexual Harassment
In the same case, the Court however held that the following do not
constitute sexual harassment:-

Uttering the following words; I want you to come back with me to the
hotel in Cyberjaya, I have a room in Cyberlodge.
Uttering the following words; I am turned on by your body hair.
Regularly making phone calls and telling a female co-worker that he is
lonely and had not had sex for a long time and asking her to meet you
privately
Calling a female co-worker to talk about his personal problems including
matters relating to having a personal mistress and telling her that you
wanted to have fun with her. When she declined, you uttered, You are no
fun.
 Case Analysis What constitutes
Sexual Harassment.
Inviting a female co-worker to get on a cruise to Phuket and and telling
her that it will be a lot of fun and we will be in different cabins if we
go.
Sitting next to and staring at a female co-worker while saying, Buat la
kerja I nak tengok and I suka jari you.
Regularly requesting her to go on a date with him and send an sms that
reads: how you doing? Suddenly I miss you so much.
Making the following remarks to a female co-worker; I want to take
you as my partner to Anugerah Bintang Popular in Genting Highlands
then telling her you pergilah kerja I tunggu you dalam bilik. Also
suggested that the female co-worker should stay another night in
Genting Highlands so that he could be with her.
Made the following remarks when she told him not to hold her hands,
I dont give a fuck about what people have to say, I am the GE and I can
do whatever I want. I can even sack a few people you know.
 Case Analysis What constitutes
Sexual Harassment.
Declaring openly that he will only send the complainant to
junket if she is nice to him.
Making a unilateral decision to send a complainant to a trip
without the knowledge of her superior.
Sent SMS of a personal nature to the effect that you will be
pushing her grade up and that she should keep this
information to herself.
Called a female co-worker to enquire when was the last
time she was promoted and told her that you would be
promoting her as it is the gesture of our friendship.
 Case Analysis What constitute
Sexual Harassment?
In Kamarul Zaman Mamat v Nippon Wiper Blade (M)
Sdn Bhd (2013) 2 LNS 0517, the following charges against the
employee were proven justifying his dismissal by the
Company and were held to constitute sexual harassment:-
Suggesting remarks of a sexual nature by saying marilah
duduk sini with his hands on his thigh.
Leering or oogling with suggestive overtones denoting
persistent flirting which made her uncomfortable and unsafe
at her workplace.
Inappropriately touching a female employee and putting his
hands on her thigh twice in which both occasions she pushed
him aside.
 What does not constitute sexual
harassment?
In the book titled A Guide to Malaysia Code of Practice on Sexual
Harassment in Workplace by Tengku Dato Omar b. Tengku Bot and
Maimunah Aminuddin, set out conduct which are not deemed to constitute
sexual harassment include;
(a) when a male co-worker compliments your outfit
(b) when he gives you a social hug-kiss and does the same to everyone else.
(c) when he tells a naughty joke which is rather amusing.
(d) if he wants to date you and he is single, but you decline.
(e) if you have done a good job, he pats you on the shoulder
(f) if he leaves a memo complimenting you on your good work.
(g) when he gives you an appointment after office hours and discusses
matters with his office door open
(h) When he tells you that you may have to entertain male clients, even
at night.
 What does not constitute sexual
harassment?
Sunway Lagoon Club Bhd v Md Noh Mat Tahir (2007) 2 ILR 273
Facts: The Complainant (a club member) alleged that she was sexually
harassed by the employee who gave her a massage in her state of partial
undress. The Complainant alleged that the employee fondled her breasts
and touched her private parts.
Held: The conduct of the Complainant immediately after the
massage was important to prove whether she was actually harassed.
After the massage, the Complainant accepted an invite from the
employee for coffee, and also asked the employee to give her a lift home.
In this case, the court found grave doubts about the veracity of the
Complainants evidence and found that the need for corroboration was
very necessary. This is because the conduct of the Complainant was not
consistent with a person who claims to be sexually harassed.
 Case Analysis Corroboration
Jennico Associates Sdn. Bhd. v Lilian Therera De Costa
& Anor. (1998) 3 CLJ 583;
Facts: The Respondent employed by the Appellant
company submitted her letter of resignation some three
months after her appointment. She claims to have been
constructively dismissed, based on her allegations of two
sexual harassments and the subsequent act of fault finding.
On one occasion, the Claimant alleged that the Managing
Director of the Company pulled her to him and kissed her
on the lips. She had then told the Managing Director
Please dont ever do that again. However, she did not
inform anyone of the incident. Both the instances of sexual
harassment were not witnessed by anyone.
 Case Analysis - Corroboration
On another occasion, after a meeting, the Managing Director is said to
have uttered these words to the Claimant, you are very beautiful, I
wish I can make you my second wife. As she left the meeting room, the
Managing Director grabbed her from behind and started molesting her
from behind. He touched her waist, breast and started kissing her neck
and face. After this incident, the Claimant narrated the incident to a
friend.

Held: The Industrial Court held as follows:-

It cannot be emphasized strongly enough that sexual harassment of
an employee by an employer would constitute repudiatory conduct on
the part of the latter such as would entitle the former to bring the
contract of employment to an end.
 Case Analysis - Corroboration
There would rarely be cases of physical sexual harassment where the
Court would have the benefit of hearing direct testimony of independent
witnesses. It would often be the word of the complainant against that of
the alleged harasser. The general principle in the trial of criminal sexual
offences is that as a rule of prudence, the Court normally looks for some
corroboration of the complainants testimony to satisfy its conscience
that the complainant is telling the truth and that the accused has not
been falsely implicated. .. However, the Court notes that minimum
corroboration is required where a Complainants evidence makes a deep
impression of veracity.
On judicial review, the High Court, despite agreeing with the Industrial
Courts finding that an allegation of sexual harassment must be
adequately corroborated, found that on the facts, the allegations of
sexual harassment by the complainant were not corroborated as
required and in most cases were riddled with contradictions and gave
rise to suspicion.
 What to do when you have been
sexually harassed?
Be firm and tell the harasser that his/her conduct/attitude
is unwelcomed and you wish for it to stop.

If harasser persisted, talk to someone in the organization

who could help you, i.e. personnel officer or sexual
harassment counselor or employee/union representative.

Remember to record the details of each event; date, time,

location, what happened, what was said and the names of
any witnesses or others victimized by the sexual
harassment.
 What to do when you have been
sexually harassed?
Write to the offender, including description, date and time
of the unwelcomed conduct/attitude, clear statement that
you want it to stop and the warning of further action for
non-compliance. Make a copy for your personal records
and consider having someone witness the transfer of the
letter.

If your manager/supervisor is harassing you, consider

speaking to someone more senior, or your personnel officer
and union representative, or seek help from the Labor
Ministry.
Actions by Employer and Remedies
for Failure to Take Action
The Code

encourages employers in any organization to

establish an in-house mechanism to strategically
deal with complaints of sexual harassment.
Article 16 of the Code encourages employers to
develop a separate complaint procedure to deal
specifically with the sensitive nature of such
complaints.
Actions by Employer and Remedies
for Failure to Take Action
Article 18 suggests that a complaint procedure should contain at least
the following elements:

A step by step procedure for reporting and processing of a

complaint with a suitable time-limit for each step
An investigation procedure; and
An appeal procedure to enable dissatisfied party to appeal against
the outcome of an investigation to a higher authority.
Actions by Employer and Remedies
for Failure to Take Action
Employment Act 1955

-S. 81B(1) requires employer or any class or employers to

inquire into a complaint of sexual harassment in a
manner prescribed by the Minister.

-S. 81B(2) provides that when employer refuses to inquire

into such complaints, the employer shall inform the
complainant of the refusal and the reasons for refusal in
writing, not later than 30 days after the date of the receipt
of the complaint.
Actions by Employer and Remedies
for Failure to Take Action
S. 81B(3) sets out reasons for which employer may refuse to
inquire into such complaints:

(a) complaint of sexual harassment has previously been

inquired into and no sexual harassment has been proven;
and

(b) employer is of the opinion that complaint of sexual

harassment is frivolous, vexation or is not made in good
faith.
Actions by Employer and Remedies
for Failure to Take Action
Employment Act 1955 - Remedies

S. 81B(4): Complainant who is dissatisfied with the

refusal of the employer to inquire into the
complaint of sexual harassment may refer the
matter to the Director General.
Actions by Employer and Remedies
for Failure to Take Action
S. 81C: If the employer is satisfied that sexual harassment is
proven under S. 81B(1), the employer shall take
disciplinary action against the harasser if the harasser is
also an employee of the organization.

In the case where harasser is not employed in the

organization, the employer shall recommend that the
harasser be brought before appropriate disciplinary
authority to which the harasser is subject to.
Actions by Employer and Remedies
for Failure to Take Action
S. 81D(1): When a complaint of sexual harassment is made to the
Director General, the Director General shall assess the complaint and
may direct an employer to inquire into such complaint.

S. 81E(1): When the Director General decides that sexual harassment is

proven, the complainant may terminate his/her contract of service
without notice, and if the complainant does, he/she will be entitled to:

(a) wages as if the complainant has given the notice of termination

(b) termination benefits and indemnity provided under the Act or

contract of service
Actions by Employer and Remedies
for Failure to Take Action
S. 81F: Any employer who fails to inquire into
complaints of sexual harassment under S. 81B(1)
commits an offence and shall be liable to a
fine not exceeding ten thousand ringgit,
irrespective of the wages of the employee.
 Case Analysis Constructive
Dismissal
In Sitt Tatt Bhd. v Flora Gnanapragasam & Anor (2005) 7 CLJ 522, the court
held;

Facts: The Claimant claimed that she was constructively dismissed by acts of
sexual harassment by her superior, she further submitted that she has
approached two senior officers to complaint about the harassments but
neither of them took any steps to rectify the situation.
Held: The two senior officers, Desmond and Nik Murad were guilty of
dereliction of duty in not taking any remedial measures when the Claimant
informed them of the sexual harassments committed by Sivananda, the
Claimants superior. All the incidents were reported to them when the claimant
could no longer tolerate the harassments. The facts showed that they had
connived and condoned the acts of Sivananda. The Claimant was left with no
other alternative but to consider herself constructively dismissed and she had
lawfully done so.