Proving Sexual Harassment in Unfair Dismissal Claims
While sexual harassment constitutes a very serious misconduct which also can amount to a criminal offence, the standard of proof is no more onerous than other types of workplace misconduct. Employers need only be satisfied that the employee had, on a balance of probabilities, committed sexual harassment. Balance of probabilities means there must be more than a 50% chance that the employee committed sexual harassment.
In an employment context, sexual harassment is a fireable offence. However, an employee accused of sexual harassment who believes they have been unfairly dismissed, may lodge a complaint of unfair dismissal. In an unfair dismissal claim, the burden of proof lies on the employer to show that the dismissal was with just cause and excuse.
Due to the nature of sexual harassment which often occurs in private, there is unlikely to be many witnesses who can support the allegation aside from the complainant themselves. Proving that an employee committed sexual harassment comes with certain challenges for employers defending an unfair dismissal claim.
From a review of cases involving sexual harassment, several salient points can be distilled and used as a guide in understanding court’s treatment of evidence in unfair dismissal claims involving sexual harassment.
There is no legal requirement for corroborative evidence
Corroborative evidence means evidence that supports other existing evidence. In sexual harassment cases, corroborative evidence refers to evidence other than the complainant’s testimony about the harassment – for example, other witnesses who observed the harassment, or photographs, video footage or text messages that support the allegation of harassment.
In 2016, the Federal Court in Mohd Ridzwan bin Abdul Razak v Asmah bt Hj. Mohd Nor [2016] 4 MLJ 282 held that “there is no hard and fast rule that in a tort of sexual harassment case there must be corroboration.” Although the Federal Court’s case above was decided in a civil tort case, this principle was also applied by Industrial Courts.
Silence / passivity does not mean consent
Sexual harassment at the workplace often arises from an imbalance of power dynamics. Complainants of sexual harassment may not always immediately show signs of resistance after being harassed, and there could be a delay in filing a complaint, especially if the harasser is someone in power such as a supervisor.
While silence/delay is a factor to consider, the weight to be attached to it depends on whether other reasons influenced the complainant’s response. For example, the Industrial Court in Harry Wong Wei Chen v Petroliam Nasional Bhd [2021] ILJU 2 considered that the complainant was in a small close knit team and was in a foreign country. These circumstances explained the delay in voicing her grievance immediately as she had strong reasons not to cause any animosity.
In Abdul Halim b Mohd Salleh v Cagamas Berhad [2021] MELRU 1598, the Industrial Court referred to the US Federal Court of Appeals case of Bundy v Jackson, which held that:
“It may even be pointless to require the employee to prove she ‘resisted’ the harassment at all. So long as the employer never literally forces sexual relations on the employee, ‘resistance’ may be a meaningless alternative for her. If the employer demands no response to his verbal or physical gestures other than good-natured tolerance, the woman has no means of communicating her rejection. She neither accepts nor rejects the advances; she simply endures them. She might be able to contrive proof of rejection by objecting to the employer’s advances in some very visible and dramatic way, but she would do so only at the risk of making her life on the job even more miserable.”
Fear can render consent invalid, and silence itself does not mean consent. The “passive tolerance” of the complainant should not automatically be construed as voluntary acceptance of acts of harassment.
There must be reasonable grounds for believing the misconduct was committed
In Tee Soon Kiat v AIA Bhd [2020] ILJU 111, the court held that it only to be satisfied that at the time of the dismissal, there were reasonable grounds for believing the misconduct alleged against the employee was committed. The test is therefore not whether the employee did it but whether the employer acted reasonably in dismissing him.
This means that employers cannot merely act on bare allegations alone in dismissing the employee; it must carry out investigations, allow the accused employee opportunity to explain themselves, and demonstrate that it has evaluated all evidence before deciding to terminate.
Sexual harassment cases invariably involve competing testimonies about what occurred. Thus, the court in Tee Soon Kiat v AIA Bhd (ibid) said that the court must, on a balance of probabilities, evaluate the evidence of witnesses to determine who was telling the truth and who was lying.
For example, in Joubert Erick v Sakura Ferroalloys Sdn Bhd [2020] ILJU 278, even though there was no individual who witnessed the sexual harassment allegations (there was no direct evidence), the court held that the employer was justified in terminating the employee. The court came to the conclusion by evaluating all evidence adduced, including: i) the complainant’s Whatsapp message to others (e.g. friends) about the incident; ii) the fact that the complainant called the employer’s other staff to inform them about the incident; iii) the fact that the complainant reported to the employer.
Key takeaways
Employers are only required to be satisfied that the employee had, on a balance of probabilities, committed sexual harassment, to justify its decision to terminate.
There is no hard and fast rule as to what needs to be adduced to establish sexual harassment. However, employers must be able to demonstrate there were reasonable grounds for believing that sexual harassment was committed, and that the employer acted fairly in dismissing the employee.
While conduct of the complainant may be a relevant factor in assessing the credibility of their evidence, failure to protest is not automatically fatal to proving sexual harassment.
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This article was written by Donovan Cheah (Partner) and Adryenne Lim (Pupil in chambers). Donovan has been named as a recommended lawyer for labour and employment by the Legal 500 Asia Pacific for 2017-2022, 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, 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.
