20/06/2020
** ๐บ๐๐๐๐๐ ๐ฏ๐๐๐๐๐๐๐๐๐ ๐๐ ๐๐๐ ๐๐๐๐๐๐๐๐๐ **
A healthy workplace environment is important and should be free from sexual harassment. However, no one can deny the fact that currently there are many cases of sexual harassment which are happening in the workplace.
Very often, victims of sexual harassment refuse to voice out their predicament as they are not sure about whether the conduct towards them amounts to them being sexually harassed or not, and sometimes victims might just simply fear losing their job.
This legal article aims to create an awareness of sexual harassment in the workplace by focusing on some fundamental and essential legal knowledge that employers/employees must know in order to safeguard their interests respectively.
-- ๐๐ฆ๐๐๐ ๐๐ ๐๐๐ฅ๐ข๐๐ ๐ป๐๐๐๐ ๐ ๐๐๐๐ก --
Sexual Harassment in the workplace has no boundary and it could actually happen between the employee with the employer and/or an employee with another fellow employee. Therefore, it is pertinent to note that there are basically two (2) types of Sexual Harassment as set out by the CODE OF PRACTICE ON THE PREVENTION AND ERADICATION OF SEXUAL HARASSMENT IN THE WORKPLACE (โthe Code of Practiceโ) as issued by the Ministry of Human Resources in Malaysia, namely sexual coercion and sexual annoyance. Sexual coercion is sexual harassment that results in some direct consequence to the victim's employment.
On the other hand, sexual annoyance is sexually-related conduct that is offensive, hostile or intimidating to the recipient, but nonetheless has no direct link to any job benefit.
-- ๐น๐๐๐๐ ๐๐ ๐๐๐ฅ๐ข๐๐ ๐ป๐๐๐๐ ๐ ๐๐๐๐ก ๐๐ ๐กโ๐ ๐๐๐๐๐๐๐๐๐ --
According to the Code of Practice, sexual harassment is not only restricted to physical harassment such as inappropriate touching, but it can also be done by way of verbal harassment. For example, offensive or suggestive remarks, comments, jokes, jesting, kidding, sounds, questioning may amount to sexual harassment.
According to the case of SHAMANI DEVI CHENDRA CHEKHERAN v. SHANGRI-LA HOTELS & RESORTS [2017] 4 ILR 273, the Court held that Facebook postings and SMSs sent by a harasser to a superior at work could be tantamount to sexual harassment. The Code of Practice has also highlighted the fact that sexual harassment can be done by way of gesture or conduct such as licking lips or holding or eating food provocatively, as well as by hand signal or sign language denoting sexual activity, and persistent flirting.
-- ๐โ๐๐กโ๐๐ ๐ ๐๐๐ ๐๐๐ ๐๐ ๐ ๐ฃ๐๐๐ก๐๐ ๐๐ ๐ ๐๐ฅ๐ข๐๐ โ๐๐๐๐ ๐ ๐๐๐๐ก? --
Most people would usually perceive that victims of sexual harassment are always women and the harassers are always men. However, it is wrong and misleading to think that sexual harassment only applies to women, as men can also by equal measure be subjected to sexual harassment by a man or woman.
According to the case of MOHD RIDZWAN ABDUL RAZAK v. ASMAH HJ MOHD NOR [2016] 6 CLJ 346, it was held by the Court that a male victim shares equal rights as a female victim in the eyes of the law. As such, no victim of sexual harassment should suffer in silence if he/she has been sexually harassed in the workplace.
-- ๐ป๐๐ค ๐๐๐๐ ๐กโ๐ ๐ธ๐๐๐๐๐ฆ๐๐๐๐ก ๐ด๐๐ก 1955 ๐๐๐๐ก๐๐๐ก ๐ ๐ฃ๐๐๐ก๐๐ ๐๐ ๐ ๐๐ฅ๐ข๐๐ โ๐๐๐๐ ๐ ๐๐๐๐ก ๐๐ ๐กโ๐ ๐ค๐๐๐๐๐๐๐๐? --
A victim of sexual harassment in the workplace should immediately report to the company management and the management has a legal and/or moral duty to investigate properly and/or conduct a domestic inquiry into the incident involving the victim and the harasser. Further, it is pertinent to note that Section 81D of the Employment Act 1955 has provided a safeguard in order to protect the employeesโ interests by allowing employees to lodge a complaint to the Director General of the Human Resources Ministry.
The Director General shall assess the complaint and may direct an employer to inquire into such complaint by submitting a report of the inquiry to the Director General within thirty (30) days. In the event that an employer fails to inquire into complaints of sexual harassment when directed to do so by the Director General, an employer commits an offence and shall, on conviction, therefore be liable to a fine not exceeding ten thousand ringgit by virtue of Section 81F of the Employment Act 1955.
-- ๐โ๐ ๐ถ๐๐๐๐๐๐ฆ ๐๐๐/๐๐ ๐๐๐๐๐๐ฆ๐๐๐ โ ๐๐๐๐๐๐๐๐ก๐ฆ --
The law has imposed a duty on employers to provide for and ensure a safe workplace free of sexual harassment and intimidation. In the case of SITT TATT BHD v FLORA GNANAPRAGASAM & ANOR [2005] 7 CLJ 522, a companyโs management was guilty of dereliction of duty for not taking any action on the employeeโs complaint regarding sexual harassment.
In light of the current prevailing circumstances in the modern world, it is important for any company and/or its employers to formulate and put in place a complete set of in-house rules, regulations, procedures and/or mechanism in order to effectively combat sexual harassment and also safeguard the companyโs business reputation and integrity in the event that such unfortunate incident happens at the workplace.
-- ๐โ๐๐ก ๐๐๐ ๐กโ๐ ๐๐๐๐๐ ๐๐๐ก๐๐๐๐ ๐กโ๐๐ก ๐ ๐ฃ๐๐๐ก๐๐ ๐๐๐ ๐ก๐๐๐? --
A sexual harassment victim can commence legal proceedings and bring an action against the harasser under the tort of harassment. Victims of sexual harassment are thus encouraged to gather evidence such as eye-witness testimony or digital conversations in order to strengthen their case in Court.
Sexual harassment is a very serious misconduct and in whatever form it takes, is absolutely unacceptable and cannot be tolerated at all by anyone. No victim of any type of sexual harassment should suffer in silence just because of the fear of reprisal from the culprit and/or the fear of losing his/her job. Victims of sexual harassment are therefore duly advised and encouraged to seek out lawyers for professional legal advice and appropriate legal action to be taken accordingly as justice must not only be done but must also be seen to be done.
Author
Yap Teck Hui
