All employers have statutory obligations under the Employment Act 1955 in respect of handling sexual harassment complaints in the workplace. At the time of writing, this applies to all employees regardless of their salary.
Here’s what you need to know about the laws that protect employees against workplace sexual harassment in Malaysia:
Employment Act 1955
Under Part XVA of the Employment Act 1955 employers have the statutory responsibility to:
- Inquire into complaints of sexual harassment;
- Inform the complainant in writing in the event of a refusal to inquire into a complaint made, and the reasons for refusal within 30 days from the complaint. An employer can only refuse to inquire into a complaint if:
- The complaint has previously been inquired into and no sexual harassment was proven
- The employer is of the opinion that the complaint is frivolous, vexatious or is not made in good faith
- Where a complaint of sexual harassment is inquired into, the employer must take disciplinary action against the offending employee where sexual harassment has been proven (including dismissal without notice, a downgrade, suspension or any other punishment as deemed just and fit by the employer); and
Employers may be fined up to RM10,000 for a failure to comply with the above provisions.
Updates to the Employment Act 1955
There are upcoming amendments to the sexual harassment provisions of the Employment Act 1955 listed in the Employment (Amendment) Act 2022 (“Amendment Act”). There are only three changes regarding the sexual harassment provisions:
- Deletion of Section 81G which sets out that Part XVA on Sexual Harassment applies to all employees irrespective of wages. This is because the Employment Act 1955 will apply to all employees effective 1 January 2023.
- Addition of Section 81H: New requirement for employers to exhibit conspicuously a notice to raise awareness at the place of employment.
- Amendment of Section 81F: Penalty increased to RM50,000 from RM10,000 where an employer fails to inquire into complaints of sexual harassment or inform the complainant of a refusal to inquire and the reasons for the same.
At the time of writing, the Amendment Act is to come into force on 1 January 2023.
Commentary
Although there will be changes on the sexual harassment provisions in legislation by the Amendment Act, the responsibilities and obligations of employers in addressing sexual harassment in the workplace is still very limited. For example, the Amendment Act only adds that employers are to display a notice at the workplace to raise awareness (without providing specifics/details about the notice’s content), but adds no provisions which make sexual harassment in the workplace an offence. The Amendment Act does not provide civil remedies for victims.
There is still no legal obligation on employers to implement an anti-sexual harassment policy. Even though it is not legally required, employers should be prudent by implementing comprehensive protective and remedial measures to combat sexual harassment in the workplace.
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This article was written by Adelyn Fang (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.
