Under the Employment Act 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”.
These phrases: “unwanted,” “sexual nature,” “offensive,” “humiliating,” and “threat,” are general and are open to different interpretations by employers, employees, and even the Courts.
In this article, we explore some decisions by the Industrial Court on some examples of conduct that constitutes workplace sexual harassment.
Physical Harassment
Conducts of physical harassment, if established through the balance of probabilities, will constitute sexual harassment:
- in Freescale Semiconductor (M) Sdn. Bhd. v EMJ & Anor (2014), the Claimant deliberately touched or patted his subordinate’s buttocks. Even though the victim was fully attired in smocks and masks where her flesh was protected by layers of cloth and not violated, the Court still held that the Claimant’s act amounts to a workplace sexual harassment.
- in DIB v Tenaga Nasional Bhd (2013), the Claimant there approached his colleague from the back and touched her shoulders, kissed her cheek, and grabbed her breasts. While the victim managed to escape, the Industrial Court held that this constitutes physical sexual harassment.
Verbal Harassment
The context of the verbal content alleged to be an act of harassment is open to interpretation. For example:
- in MNK v Malayan Banking Bhd (2017), the Claimant sent SMS containing phrases such as “ILU” which stands for “I Love You” and lent a book entitled “100 Rahsia Kehebatan Lelaki” to his colleague. The Industrial Court considered the evidence that since his colleague had kept the book for one week and only returned the book after the Claimant requested for it, and held that this does not constitute sexual harassment.
- However, in SDCC v Shangri-La Hotels & Resorts (2017), the Claimant sent SMS and Facebook messages to her supervisor addressing him as “Ubbie” and amongst others, sent a statement to her supervisor that “U R MY UBBIE Always and Forever!!!”. Further, the Claimant had even told her supervisor that she had a dream of her supervisor having gay sex, and had that when she look at her supervisor, she cannot help but to think of sex. The Industrial Court held that these messages which contained the word “Ubbie” (which meant “darling”, “sweetheart”), coupled with other statements from the Claimant to her supervisor, constitutes sexual harassment against her supervisor.
Other forms of sexual harassment
For other forms of sexual harassment that are not as direct, Courts would assess the facts and background, including the context of the alleged act of harassment before considering if it constitutes sexual harassment. Some of these non-direct harassment act includes gestural and psychological harassment.
- in AHMS v Cagamas Berhad (2021), the Claimant consistently insisted and entered his colleague’s room during a business trip despite his colleague’s repeated attempts to decline his entry. On one occasion, the Claimant had even slept on his colleague’s bed for approximately 15-25 minutes. The Industrial Court considered the victim’s testimony that to her, the Claimant’s conduct had sexual intention although he did not touch her. She perceived that the Claimant wanted to sleep with her as he was sleeping on her bed. The Industrial Court decided that the Claimant’s conduct amounts to gestural harassment and a psychological sexual harassment, akin to emotional blackmail which she suffered in silence.
- in PB v Entegris Malaysia Sdn. Bhd. (2022), the Claimant persistently sent messages to his colleague on matters unrelated to work. These messages were unprofessional, intimidating, and emotional. The Industrial Court took the view that based on these messages by the Claimant, it connoted that the Claimant had been seeking something more than just a working relationship with his colleague, which amounts to workplace harassment.
- In MS v Lotuss Stores (Malaysia) Sdn. Bhd. (2022), the Claimant there had consistently sent inappropriate images to his subordinate. These images were sexy females posing alluringly and depicted in a sexual context. The victim testified that she felt uncomfortable and weird receiving these images from the Claimant. The Industrial Court here decided that the Claimant’s conduct amounted to sexual harassment. The Court further decided that being in a superior role, the Claimant was expected to protect and safeguard his subordinates, but had instead caused discomfort and fear in his employees through his conduct.
While there is no hard and fast rule on what amounts to workplace sexual harassment, the Courts have consistently adopted one common position under the Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace, where a conduct that is sexual in nature that is “unwanted,” may constitute harassment based on the assessment of the facts and evidence.
The Malaysian Government has since introduced several measures in attempts to ensure safe and harmonious working environments. This includes the Anti Sexual Harassment Act 2022, which brought about the Anti-Sexual Harassment Tribunal which has recently handed its first decision.
As a start, businesses should comply with Section 81H of the Employment in exhibiting a notice to raise awareness on sexual harassment. You can download a sample here.
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This article was written by Lim Zi-Han (Partner) and Sabrina Chang (Associate) from Donovan & Ho’s employment law practice.
Donovan & Ho is a law firm in Malaysia, and our employment practice group has built a reputation for providing strategic employment advice to local and global organisations. Our team of employment lawyers provide advice on employment law and industrial relations including review of employment contracts, policies and handbooks, advising on workforce reductions, and managing dismissals of employees for poor performance or misconduct. We also represent clients in unfair dismissal claims and employment-related litigation. Have a question? Please contact us.
