Duty to take action on all sexual harassment reports - Labour Law Blog

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Mar 13, 2018

Duty to take action on all sexual harassment reports

LAST week, we read the report about a former employee of a renowned NGO alleging in a Facebook post that her then supervisor had sexually harassed her. The former employee described in detail how the supervisor made inappropriate remarks and advances on her.

This was followed by more allegations of sexual harassment from other former employees of the NGO.

A friend informed me recently that one of his foreign male workers was accused of committing sexual harassment on one of his female staff. My friend immediately conducted an investigation, which found the foreign male worker guilty. His employment was terminated and he was sent back to his home country.

This example should be emulated and I salute my friend for having zero tolerance for harassment and inappropriate sexual conduct in the workplace.

While there is no sexual harassment act per se in Malaysia at the moment, there are legislations and guidelines such as the Penal Code (Act 574), Employment Act 1955, the Code Of Practice On The Prevention And Eradication Of Sexual Harassment In The Workplace and, most recently, the Federal Court decision which assists the victims in their legal recourse.

Section 509 of the Penal Code provides that “Whoever, intending to insult the modesty of any person, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen by such person, or intrudes open the privacy of such person, shall be punished with imprisonment for a term which may extend to five years or with fine, or with both.”

Section 2 of the Employment Act 1955 defines sexual harassment 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 wellbeing, arising out of and in the course of his employment.”

The Code Of Practice On The Prevention And Eradication Of Sexual Harassment In The Work­place prepared by the Human Resources Ministry defines sexual harassment in Article 4 as: “Any unwanted conduct of a sexual nature having the effect of verbal, non-verbal, visual, psychological or physical harassment:

> that might, on reasonable grounds, be perceived by the recipient as placing a condition of a sexual nature on her/his employment; or

> that might, on reasonable grounds, be perceived by the recipient as an offence or humiliation, or a threat to his/her wellbeing, but has no direct link to her/his employment.

Further, Section 81F of the Employment Act 1955 makes it mandatory for employers to investigate any complaints of sexual harassment:

Any employer who fails

(a) to inquire into complaints of sexual harassment under subsection 81B(1);

(b) to inform the complainant of the refusal and the reasons for the refusal as required under subsection 81B(2);

(c) to inquire into complaints of sexual harassment when directed to do so by the Director General under paragraph 81B(5)(a) or subsection 81D(2); or

(d) to submit a report of inquiry into sexual harassment to the Director General under subsection 81D(2) commits an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit.

Thus, we can conclude that as and when a female employee lodges an official complaint to her employer that she was unlawfully harassed by her male co-worker, the employer is required by the Employment Act 1955 to investigate the allegation.

Once the act of sexual harassment is proven, the employer may take disciplinary action against the perpetrator which may include dismissal, downgrading or suspension. However, there is nothing in the Employ­ment Act 1955 that defines the criminal liability of the perpetrator.

In 2016, the Federal Court established the tort of sexual harassment which sent a strong message about dealing with sexual harassment in the workplace and allowed victims to claim for civil remedies against the perpetrator.

As Malaysia’s population has grown (from 27.9 million in 2009 to 32 million now), there is a considerable amount of female participation in the workforce. In the Labour Force Survey Report Malaysia 2016 conducted by the Department of Statistics, it is reported that the female labour force participation rate rose 0.2 percentage points to 54.3%.

We can only imagine that there will be a yearly rise in female participation in the workforce. In view of this, it is imperative that they should be free from sexual harassment in the workplace. We need an act of parliament to oversee sexual harassment in the workplace. It is a basic human right that every living person has to be respected with integrity and no one can ever violate another person’s modesty.

The Sarawak Community Policing Association, which advocates for peace and safety in the community, condemns any act of sexual harassment in the workplace. It is immoral and unethical to use one’s position to gain advantage over another.

We call upon the said NGO to conduct a thorough investigation on the former employees’ allegations of sexual harassment.

We also urge the relevant authorities to urgently implement an act of parliament specifically to punish offenders and to protect the victims of sexual harassment. At the end of the day, the most effective weapon against sexual harassment is prevention.



Sarawak Community Policing Association

Original article: https://www.thestar.com.my/opinion/letters/2018/03/09/duty-to-take-action-on-all-sexual-harassment-reports/

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