By Leonard Yeoh and Pua Jun Wen
The recent revelation on social media concerning yet another sexual harassment in the workplace invites enormous concerns for a safer and more conducive working environment for our employees’ well-being. Unsurprisingly, sexual harassment in the workplace is rife and it is usually under-reported. We may even find out that similar incidents we have heard so far are just the tip of the iceberg.
A taboo for victims to confront
This could be potentially due to the lack of well-structured and victim-sensitive policies and mechanisms to address sexual harassment in the workplace which forces victims to suffer in silence. Victims have little choice and they are pushed to hide their experiences.
In 1999, the Ministry of Human Resources adopted the Code of Practice on the Prevention and Eradication of Sexual Harassment in Workplace to provide practical guidance in protecting victims of workplace sexual harassment. The Code lays down the requirements of a comprehensive in-house mechanism. “Sexual Harassment” is defined widely under the Code. However, the Code remains a guideline and has no force of law.
The principle provision governing sexual harassment under the Malaysian Penal Code is Section 509, which criminalises offences which insult the modesty of any person. Word, gestures or objects which are seen to intrude upon the privacy of a person will also be covered under the section.
In a landmark decision, the Federal Court decided against the sexual harassment perpetrator under the tort of sexual harassment which the Court awarded general, aggravated and exemplary damages to the victim. This case marks the recognition of the tort of sexual harassment under the Malaysian law in allowing victims to claim for civil remedies.
Under the Employment Act 1955 (EA 1955), sexual harassment is defined 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”. Essentially, the EA 1955 makes it a statutory obligation for an employer to enquire into a complaint of sexual harassment by an employee, within 30 days upon receipt of such complaint.
Tackling workplace sexual harassment
The Malaysian legal system offers limited recourse for sexual harassment, be it at the criminal, labour or administrative level. To begin with, there is no particular legislation in Malaysia that is tailored specifically to eliminate workplace sexual harassment despite the continuous calls for better protection.
The Malaysian Penal Code does not specifically define sexual harassment. A detailed definition is necessary to ensure that it catches all forms of sexual harassment conducts. Sexual harassment does not happen in broad daylight. To validate criminal liability of the perpetrator under the Penal Code, the victims bear the heavy onus to satisfy beyond reasonable doubt under circumstances where evidence is usually irretrievable.
The prevailing laws do not specify the proper procedure to handle complaints of sexual harassment. Hence, there will be no assurance as to the adherence towards natural justice during complaint investigation.
Recognising and eradicating
Recognising these inadequacies, a model sexual harassment policy and grievance procedure are crucial and must be formulated as a mandatory policy to be implemented in every workplace. This enables any conduct acting against such policy or procedure to be considered as a misconduct which warrants disciplinary actions, including dismissal.
As this issue garnered increasing attention from the public, policymakers must be quick to formulate a proper law to combat sexual harassment in the workplace. The government’s failure to act may result in more employees suffering in silence.
Act upon it or be prepared to embrace the “new normal” of workplace sexual harassment. - June 19, 2020
Leonard Yeoh is a partner and Pua Jun Wen a legal associate with legal firm Tay & Partners.