The much anticipated Anti-Sexual Harassment Bill 2021 (“Bill”) was finally tabled for its first reading in parliament on 15 December 2021.
Below is a summary of the key provisions of the bill:
Establishment of a Tribunal to hear redresses relating to sexual harassment complaints.
Under the bill, a tribunal will be established to hear redresses relating to sexual harassment complaints.
The tribunal shall consist of: i) members/individuals who have held office of the Judicial and Legal Service; ii) advocates and solicitors with not less than 7 years’ standing; iii) individuals who have knowledge of or practical experience in matters relating to sexual harassment.
To hear a sexual harassment complaint, a tribunal consisting of 3 members will be empanelled, and at least one member shall be a woman.
Exclusive jurisdiction of the tribunal to hear and determine any complaint of sexual harassment.
If a complaint is lodged with the tribunal, the tribunal shall have exclusive jurisdiction to hear the matter unless: i) proceedings had already commenced before a court; ii) the complaint involves conduct which constitutes a criminal offence; iii) the complaint is withdrawn/struck out.
This means that once a complaint is lodged with the tribunal, only the tribunal has the jurisdiction to hear the matter, unless any of one the exceptions mentioned above applies.
However, the tribunal is empowered under the bill to refer to a Judge of the High Court a question of law if it is of the view that such question is of sufficient importance to merit such reference.
Legal representation is not allowed at the hearing.
Awards/orders that may be made by the tribunal.
The tribunal may order the respondent (the individual against whom the complaint is made) to issue a statement of apology; order the respondent to pay any compensation or damages not exceeding RM250,000.00; order the parties to attend any programme as the tribunal thinks necessary; dismiss the sexual harassment complaint if it considers it to be frivolous or vexatious.
Any awards/orders made are by the tribunal are binding and enforceable. Failure to comply with the tribunal’s award is a criminal offence which is punishable with imprisonment.
Right to challenge the tribunal’s award.
Any party to the proceedings of the tribunal may apply to the High Court to challenge the tribunal’s award. However, the right to challenge is limited; parties are only allowed to challenge the award if there is a “serious irregularity” affecting the award. Serious irregularity under the bill means i) failure of the tribunal to deal with all the relevant issues that were put to it; or ii) uncertainty or ambiguity as to the effect of the award.
Establishment of an administrator
Under the bill, an administrator will be established to develop policies, programs, etc. relating to sexual harassment.
Commentary
The Bill is mainly to stablish a tribunal and administrator to create an avenue to redress sexual harassment complaints and to develop policies, programs, etc. relating to sexual harassment. The Bill is short in many ways:
- The Bill does not classify any specific conduct as sexual harassment or an offence under the Bill (save for non-compliance with an order of the tribunal)
- The Bill also imposes no obligations on employers. Given that sexual harassments often occur in the workplace, the lack of provisions to specifically deal with such issues in the workplace (especially since it is also not addressed in the Employment Act 1955) may still leave many individuals vulnerable. For example, there is no requirement for employers to establish channels for reporting, and the Bill does not prohibit retaliation against complainants.
- Parties cannot be legally represented at the Tribunal hearings. Sexual harassment cases often involve an imbalance in power dynamics (eg: subordinate being harassed by their supervisor). A complainant required to attend Tribunal hearings without legal representation may find it daunting and challenging especially where the complaints are made against someone in a position of power; this could disincentive complainants from pursuing their grievances, and render the Tribunal meaningless if complainants are too intimidated from raising complaints. Legal representation can level the playing field and ensure the imbalance in power dynamics is not carried forward into the Tribunal hearings.
- The orders that the Tribunal may make may be inadequate to address the harm caused by the sexual harasser. For example, the order to pay damages does not protect the complainant from future harassment. The cap on damages (RM250,000) also appears to be arbitrary, given there is no such cap if a complainant commenced civil proceedings.
- While parties may challenge the Tribunal’s award on the ground of serious irregularity, it is unclear whether this is to be done by way of judicial review, appeal or some other process. The Bill also does not specify the procedures that parties must follow.
As it is still in the early stages of being debated in parliament, it is hoped there will be further amendments to the Bill to address the issues highlighted above.
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This article was written by Donovan Cheah (Partner) and Adryenne Lim (Pupil). Donovan is an Advocate and Solicitor of the High Court of Malaya. He is a Fellow at the Singapore Institute of Arbitrators and the Malaysian Institute of Arbitrators. He is also a registered foreign lawyer with the Singapore International Commercial Court.
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.
