Sexual Harassment at the Workplace: Bossku Panggilku ‘Sayang’? - Malaysia

Status Quo

Sexual harassment at workplace is a serious and commonly under-reported problem in Malaysia.

The leading “guide” (so to speak) in the country is the 1999, Code of Practice on the Prevention and Eradication of Sexual Harassment in Workplace (“the Code”) by the Ministry of Human Resource in Malaysia which serves to assist potential victims from workplace harrasments.

The common provision when it comes to penalizing sexual harassment is Section 509 of the Malaysian Penal Code which criminalizes acts insulting the modesty of a person.

Under the Employment Act 1955 (“EA 1955”), sexual harassment 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.”

The EA 1955 provides that an employer, within 30 days of receiving a complaint, is required to probe into a complaint of sexual harassment by their employee.

Notable Cases

In the recent Industrial Court case of Loganathan Maniam v Murphy Sarawak Oil Co Ltd [2020] 2 ILR 275, the court held that calling someone at the workplace “sayang” amounts to sexual harassment and constitutes an act of misconduct, which justifies outright termination of an employee.

In this case, the claimant had been in employment with the company for approximately 3 years. He was sent on assignment by the company to the a contractor’s site in Kuching, and received a show cause letter from the company 2 months later for sexually harassing his subordinate.

He was sent for assignment to the company’s contractor’s site in Kuching and, two months later, was issued a show cause letter on charges of sexual harassment of his subordinate. Some of the charges include verbal harassment, physical harassment, paying unwelcome attention and abusing the position as a superior in the organization.

The court held that the acts done by the claimant in this case amounts to sexual harassment and his dismissal is with just cause and excuse.

In the case of Shell Malaysia Trading Co Sdn Bhd v. National Union of Petroleum & Chemical Industry Workers [1986] 1 ILR 677 (Award No. 134 of 1986), the Industrial Court held that:

“The company cited various authorities from Soonavala’s The Supreme Court on Industrial Law (1979 Edition) … But one authority relied on by the company goes on to add: It is for the management to determine whether the act of the workman constitutes misconduct and whether it merits an order of dismissal. However, in determining whether there has been such misconduct, it must have facts upon which to base its conclusions and it must act in good faith without caprice or discrimination and without motive of victimization or intimidation or resorting to unfair labour practice and there must be no infraction of the accepted rules of natural justice. When management does have facts from, which it can conclude misconduct, its judgement cannot be questioned provided the above-mentioned principles are not violated.”

The principle of setting the standard of proof can be seen in the case of Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ 314, wherein it was stated as follows:

“… it is quite clear to us that the Industrial Court should not be burdened with the technicalities regarding the standard of proof, the rules of evidence and procedure that are applied in a court of law. The Industrial Court should be allowed to conduct its proceedings as a “court of arbitration”, and be more flexible in arriving at its decision, so long as it gives special regard to substantial merits and decide a case in accordance with equity and good conscience. Thus, we can see that the preponderant view is that the Industrial Court, when hearing a claim of unjust dismissal, even where the ground is one of dishonest act, including “theft”, is not required to be satisfied beyond reasonable doubt that the employee has “committed the offence”, as in a criminal prosecution … The standard of proof required, that is the civil standard based on the balance of probabilities, which is flexible, so that the degree of probability required is proportionate to the nature of gravity of the issue. As such, there is no question of the employer proving that the employee had committed the offence beyond reasonable doubt. There is ample authority for saying that the test is not whether the employee did it but whether the employer acted reasonably in thinking the employee did it (see: Ferado Ltd. v. Barnes [1976] 439 ICR). In order for the employer to establish reasonable grounds, they must show that they had made reasonable enquiries and did not form their belief hastily and that they had given employee a fair opportunity to explain himself (see: W Weddel & Co Ltd. v. Tepper [1980] IRLR 76).”

In Vasuthevan Athaly v. Freescale Semiconductor (M) Sdn Bhd [2013] 1 ILR 73 (Award No. 1401 of 2012), the court held that the claimant’s one-off action of physically putting his hand on the waist of the complainant/victim who was working at that area without her consent, was a serious offence and a breach of the company’s Rules and Regulations. The claimant’s conduct was unacceptable and is deemed to be detrimental to the welfare and interest of the company and its employees. As such, the court held that sexual harassment has clearly been proven by the company.

The case of Chen Beng Kwee v. St Microelectronic Sdn Bhd [2012] 6 CLJ 865 was also referred to in illustrating scenarios that constitute workplace sexual harassment. In the St Microelectronic case, the claimant reached out to and held the complainant’s/victim’s (who is a Muslim girl) hands and tapped her hand twice somewhere below her elbow, allegedly to catch her attention as they were in a noisy area.

The High Court concurred with the evidence put forth to suggest that there was no necessity to touch the complainant in the given situation, and proceeded to rule that touching a woman physically is inappropriate; and touching a Muslim girl is physically offensive.

The High Court’s ruling in the case of St Microelectronic essentially upheld the Industrial Court’s decision which found the termination of the claimant’s employment to be justified due to the act of sexual harassment committed against the complainant.