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Is it sexual harassment to call your colleague “sayang” (“dear”)?

What about showering someone with gifts and attention?

These are some of the questions that the Industrial Court had to deal with in the recent case of Loganathan Maniam v Murphy Sarawak Oil Co Ltd [2020] 2 ILR 275. Here, an employee claimed unfair dismissal after he was terminated by the company for committing sexual harassment.

Brief Facts
  • The Claimant was alleged to have committed several acts of sexual harassment against his secretary. Among other things, the allegations were that he:
    • Called her “sayang” (dear) publicly in front of others, and through electronic messages
    • Put his hand around her shoulders and shaking her hands unnecessarily
    • Showered her with unwanted gifts (like perfume, hand cream, a phone cover, flowers and chocolate), text messages, and attention
    • Asked her to carry out work outside her scope of work such as picking him up from the airport, following him to buy attire for a team building dinner, and expecting her to show him to his hotel room during a team building event
  • The Claimant’s response was that primarily he did not have a sexual motive in taking those actions. For example, the Claimant alleged that he used the phrase “sayang” with his secretary’s consent, and it was because he viewed her as his daughter
  • The Claimant was dismissed on grounds of misconduct after a domestic inquiry

Court’s Findings

The Court upheld the dismissal, and found that the Claimant had in fact committed sexual harassment. Among other things, the Court held:

  • The term “sayang” as it is known in the Malay speaking region is an endearment, and generally indicates intimacy and or a relationship beyond friendship when involving two people. The relationship between the claimant and his secretary is an employment relationship, and as a superior he should have kept his relationship with her at a professional level
  • Although his secretary did not expressly object to being addressed as “sayang”, this does not warrant him to address her in that manner, since it is obvious during the testimony that the secretary was displeased with being called “sayang” and that it embarrassed her
  • Holding a superior position, the Claimant should be aware that gifting a female subordinate items which are personal in nature (e.g flowers on Valentine’s Day and perfume) is unacceptable
  • In respect of the physical harassment, the Court referred to a previous High Court case that held that touching a woman physically was something inappropriate, and touching a Muslim female was something that is “physically offensive”. Here, the Claimant’s secretary was a Muslim female, so the Court took into account the recipient’s religious and cultural background in determining what was appropriate
  • The Claimant had therefore committed unnecessary acts that were unacceptable, given the position he was holding, and considering the culture and background of his colleagues. His actions showed a lack of decorum as a superior and was abusive in nature

Key Takeaways

Sexual harassment under the Employment Act 1955 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.”

It is a serious misconduct and should not be tolerated by an employer in any form, as an employer has an obligation to protect their employees from being sexually harassed. In this case, the Industrial Court cited the decision in Shaun Khee Tuck Keat v Carigali Hess Operating Company Sdn Bhd [2016] 4 ILR 112 which held that:

“Harassment in any form lowers the dignity and respect of the ones who get harassed and disrupts or destroys the harmonious and conducive environment of the workplace. The perpetrators who go unpunished will only intimidate, humiliate and traumatize the victims resulting in an unhealthy working environment…”

The Industrial Court’s decision in Loganathan Maniam highlights that sexual harassment is not limited to physical harassment. Non-physical actions such as using a term of endearment or nickname, or giving them personal gifts or excessive attention, can still be construed as sexual harassment especially if it is unwanted and goes on repeatedly.

In our line of work, we have found that it is not uncommon for sexual harassment in a non-physical form to go unreported. Those who have been subject to sexual harassment tend to feel that these types of actions are not as “severe” as physical harassment, and many find it difficult to identify when a non-physical action has crossed the line.  It is therefore crucial for employers to ensure that their employees receive adequate training on sexual harassment, so that their workforce can properly educated on what amounts to inappropriate behaviour.

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This article was written by Donovan Cheah. Donovan has been named as a Recommended Lawyer for Labour and Employment by the Legal 500 Asia Pacific 2017, 2018, 2019 and 2020, and he has also been recognised by Chambers Asia Pacific and Asialaw Profiles for his employment law and industrial relations work.

Donovan & Ho is a law firm in Malaysia. Our practice areas include employment law, dispute resolution, tax advisory and corporate advisory.  Have a question? Please contact us.

 

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