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WORKPLACE SEXUAL HARASSMENT: RIGHTS AND OBLIGATIONS OF EMPLOYEES AND EMPLOYERS CPD CAMP 2017 Janice Anne

WORKPLACE SEXUAL HARASSMENT:

RIGHTS AND OBLIGATIONS OF EMPLOYEES AND EMPLOYERS

CPD CAMP 2017

Janice Anne Leo Partner, Messrs Shook Lin & Bok

What is Sexual Harassment? Understanding the Code Code of Practice on the Prevention and Eradication

What is Sexual Harassment?

Understanding the Code

Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace, in its Article 4 (the Code) defines sexual harassment as:

Any unwanted conduct of a sexual nature having the effect of verbal, non-verbal, visual, psychological or physical harassment;

(a) that might, on reasonable grounds, be perceived by the recipient as

placing a condition of a sexual nature on her/his employment; or

(b) that might, on reasonable grounds, be perceived by the recipient as an

offence or humiliation, or a threat to his/her well being, but has no direct

link to his/her employment.

What is Sexual Harassment? Understanding the Code Categories of Sexual Harassment Sexual annoyance – sexually

What is Sexual Harassment?

Understanding the Code

Categories of Sexual Harassment Sexual annoyance – sexually Sexual Coercion - when sexual harassment results
Categories of Sexual Harassment
Sexual annoyance – sexually
Sexual Coercion - when sexual
harassment results in some direct
consequence to victim’s
employment
related conduct that is offensive,
hostile or intimidating to the
recipient and creates a bothersome
working environment of which the
recipient has to tolerate.
What is Sexual Harassment? Understanding the Code 5 forms of Sexual Harassment:  Verbal Harassment

What is Sexual Harassment?

Understanding the Code

5 forms of Sexual Harassment:

Verbal

Harassment:

offensive

questions.

or

suggestive

remarks,

jokes

or

Non-Verbal/Gestural Harassment: sexual overtones when leering, ogling, provocative behaviours and sign language denoting sexual activity.

Visual Harassment: showing sex-based materials or pornographic

materials

Psychological Harassment: persistent and unwanted invitations and communications

Physical Harassment: inappropriate touching, pinching, stroking,

hugging, kissing, fondling and etc.

What is Sexual Harassment? Understanding the Code  Hong Leong Bank Berhad v Adrian Joseph

What is Sexual Harassment?

Understanding the Code

Hong Leong Bank Berhad v Adrian Joseph DCruz (2005) 2 LNS

1904:-

Facts: The Claimant was dismissed by the Company after a domestic inquiry for nine charges of verbal sexual harassment as follows:

That you as the Assistant Branch Manager of Sitiawan Branch had on 30 July 2002, at about 2:15 pm, in the Managers room, verbally

harassed Ms. Aw Mei Hwa, an Officer of the Branch by uttering to her

words to the following effect:

(a) That she wants to show you her breast and you could see her breast;

(b) That she will open her legs wide whenever you are near her;

to

(c) That she did the above matters on purpose for you an other see;

staff

What is Sexual Harassment? Understanding the Code d) That you could tell the colour of

What is Sexual Harassment?

Understanding the Code

d) That you could tell the colour of her panties that she is wearing;

(e)

That you have seen every part of her body;

(f)

That you could tell what colour is her nipple;

(g) That she has very high urge for sex;

(h) That you challenged her to put her hand inside the pants of

other male staff; and (i) That you have alleged that she has affairs with other guys.

Your conduct as above tantamount to sexually harassing Ms. Aw Mei Hwa and unbecoming of you as an employee of the Bank.

What is Sexual Harassment? Understanding the Code  Held : The admission of the employee

What is Sexual Harassment?

Understanding the Code

Held: The admission of the employee that he had uttered the words as contained in the charges is consistent with what amounts to sexual harassment as explained by Article 4 of The Code.

It was further quoted from the above case that;

In any society such conduct by the Claimant does certainly warrant

instant dismissal. Society does not tolerate such behaviour. The

message to be passed down is that if a person sexually harasses another person at a work place, that person can expect instant dismissal even if that person has had a good track record.

What is Sexual Harassment? Understanding the Code The Code encourages the establishment of preventive mechanisms

What is Sexual Harassment?

Understanding the Code

The Code encourages the establishment of preventive mechanisms at the enterprise level to combat sexual harassment in the workplace. Elements of a comprehensive in-house mechanism outlined by the Code include:

policy

employees

prohibiting sexual harassment in the organization.

that

employees are aware of unwelcomed and offensive conducts and attitudes.

statement

by

the

Management

to

the

clear

definition

of

sexual

harassment

a

to

ensure

What is Sexual Harassment? Understanding the Code  a complaints/grievance procedure to deal with the

What is Sexual Harassment?

Understanding the Code

a complaints/grievance procedure to deal with the problem when it arises

enforcement of disciplinary rules

adequate measures to ensure maximum confidentiality and sufficient remedial measures for victim

promotional and educational programs to raise awareness

What is Sexual Harassment? Employment Act 1955  Sexual Harassment as defined by Section 2

What is Sexual Harassment?

Employment Act 1955

Sexual Harassment as defined by Section 2 of the Employment Act

1950:

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 above provision was incorporated in the recent amendments to the

Employment Act 1950 in 2012.

Case Analysis – What constitute Sexual Harassment?  In Varitronix (M) Sdn Bhd v R.

Case Analysis What constitute

Sexual Harassment?

In Varitronix (M) Sdn Bhd v R. Thandavanaiker P Raman (2004) 3 ILR 426, the court held that the conduct of a male worker touching the genital of another male co-

worker and rubbing his chest, witnessed by two other

witnesses, constitutes sexual harassment.

In Dzulkifli Ibrahim v Tenaga Nasional Berhad (2013) 2 ILR 153, the act of touching the shoulder, kissing the cheek and grabbing the breast of another co-worker were held to be sexual harassments, justifying the Companys decision to terminate the employee’s services for serious misconduct.

Case Analysis – What constitute Sexual Harassment? In Md. Salehuddin Othman v New Straits Times

Case Analysis What constitute

Sexual Harassment?

In Md. Salehuddin Othman v New Straits Times Sdn. Bhd. (2013) 2 LNS 0568, the court held the following acts to constitute sexual harassment:

Wrapping his arm around a female co-worker and clasping her hand against her free will and consent

Holding the hand of a female co-worker and stroking her arm without her free will and consent

Patting the buttock of a female co-worker against her free will and

without her consent

Massaging the shoulder of a female co-worker against her free will and without her consent.

Putting his hands around the waist of a female co-worker against free

will and without her consent.

Case Analysis – What constitute Sexual Harassment In the same case, the Court however held

Case Analysis What constitute

Sexual Harassment

In the same case, the Court however held that the following do not constitute sexual harassment:-

Uttering the following words; I want you to come back with me to the hotel in Cyberjaya, I have a room in Cyberlodge.Uttering the following words; I am turned on by your body hair.

Regularly making phone calls and telling a female co-worker that he is lonely and had not had sex for a long time and asking her to meet you

privately

Calling a female co-worker to talk about his personal problems including matters relating to having a personal mistress and telling her that you

wanted to have fun with her. When she declined, you uttered, You are no

fun.

Case Analysis – What constitutes Sexual Harassment.  Inviting a female co-worker to get on

Case Analysis What constitutes

Sexual Harassment.

Inviting a female co-worker to get on a cruise to Phuket and and telling her that it will be a lot of fun and we will be in different cabins if we go.

Sitting next to and staring at a female co-worker while saying, Buat la kerja I nak tengokand I suka jari you.

Regularly requesting her to go on a date with him and send an sms that reads: how you doing? Suddenly I miss you so much.

Making the following remarks to a female co-worker; I want to take you as my partner to Anugerah Bintang Popular in Genting Highlandsthen telling her you pergilah kerja I tunggu you dalam bilik. Also suggested that the female co-worker should stay another night in Genting Highlands so that he could be with her.

Made the following remarks when she told him not to hold her hands, I dont give a fuck about what people have to say, I am the GE and I can do whatever I want. I can even sack a few people you know.

Case Analysis – What constitutes Sexual Harassment.  Declaring openly that he will only send

Case Analysis What constitutes

Sexual Harassment.

Declaring openly that he will only send the complainant to junket if she is nice to him.

Making a unilateral decision to send a complainant to a trip

without the knowledge of her superior.

Sent SMS of a personal nature to the effect that you will be pushing her grade up and that she should keep this

information to herself.

Called a female co-worker to enquire when was the last time she was promoted and told her that you would be promoting her as it is the gesture of our friendship.

Case Analysis – What constitute Sexual Harassment? In Kamarul Zaman Mamat v Nippon Wiper Blade

Case Analysis What constitute

Sexual Harassment?

In Kamarul Zaman Mamat v Nippon Wiper Blade (M) Sdn Bhd (2013) 2 LNS 0517, the following charges against the employee were proven justifying his dismissal by the

Company and were held to constitute sexual harassment:-

Suggesting remarks of a sexual nature by saying marilah duduk siniwith his hands on his thigh. Leering or oogling with suggestive overtones denoting persistent flirting which made her uncomfortable and unsafe at her workplace. Inappropriately touching a female employee and putting his hands on her thigh twice in which both occasions she pushed him aside.

What does not constitute sexual harassment?  In the book titled “ A Guide to

What does not constitute sexual

harassment?

In the book titled A Guide to Malaysia Code of Practice on Sexual Harassment in Workplaceby Tengku DatoOmar b. Tengku Bot and Maimunah Aminuddin, set out conduct which are not deemed to constitute sexual harassment include;

(a)

when a male co-worker compliments your outfit

(b)

when he gives you a social hug-kiss and does the same to

everyone else.

(c)

when he tells a naughty joke which is rather amusing.

(d)

if he wants to date you and he is single, but you decline.

(e)

if you have done a good job, he pats you on the shoulder

(f)

if he leaves a memo complimenting you on your good work.

(g)

when he gives you an appointment after office hours and

discusses

matters with his office door open

(h) When he tells you that you may have to entertain male

at night.

clients,

even

What does not constitute sexual harassment? Sunway Lagoon Club Bhd v Md Noh Mat Tahir

What does not constitute sexual

harassment?

Sunway Lagoon Club Bhd v Md Noh Mat Tahir (2007) 2 ILR 273 Facts: The Complainant (a club member) alleged that she was sexually harassed by the employee who gave her a massage in her state of partial undress. The Complainant alleged that the employee fondled her breasts and touched her private parts.

Held: The conduct of the Complainant immediately after the massage was important to prove whether she was actually harassed. After the massage, the Complainant accepted an invite from the employee for coffee, and also asked the employee to give her a lift home. In this case, the court found grave doubts about the veracity of the Complainants evidence and found that the need for corroboration was very necessary. This is because the conduct of the Complainant was not

consistent with a person who claims to be sexually harassed.

Case Analysis – Corroboration  Jennico Associates Sdn. Bhd. v Lilian Therera De Costa &

Case Analysis Corroboration

Jennico Associates Sdn. Bhd. v Lilian Therera De Costa & Anor. (1998) 3 CLJ 583;

Facts: The Respondent employed by the Appellant company submitted her letter of resignation some three months after her appointment. She claims to have been constructively dismissed, based on her allegations of two sexual harassments and the subsequent act of fault finding.

On one occasion, the Claimant alleged that the Managing

Director of the Company pulled her to him and kissed her on the lips. She had then told the Managing Director Please dont ever do that again. However, she did not inform anyone of the incident. Both the instances of sexual harassment were not witnessed by anyone.

Case Analysis - Corroboration  On another occasion, after a meeting, the Managing Director is
Case Analysis - Corroboration  On another occasion, after a meeting, the Managing Director is
Case Analysis - Corroboration  On another occasion, after a meeting, the Managing Director is

Case Analysis - Corroboration

On another occasion, after a meeting, the Managing Director is said to have uttered these words to the Claimant, you are very beautiful, I wish I can make you my second wife. As she left the meeting room, the Managing Director grabbed her from behind and started molesting her

from behind. He touched her waist, breast and started kissing her neck

and face. After this incident, the Claimant narrated the incident to a friend.

Held: The Industrial Court held as follows:-

It cannot be emphasized strongly enough that sexual

an employee by an employer would constitute

the part of the latter such as would

contract of employment to an

harassment of

repudiatory conduct on

entitle the former to bring the

end.

Case Analysis - Corroboration  “ There would rarely be cases of physical sexual harassment
Case Analysis - Corroboration  “ There would rarely be cases of physical sexual harassment
Case Analysis - Corroboration  “ There would rarely be cases of physical sexual harassment

Case Analysis - Corroboration

There would rarely be cases of physical sexual harassment where the Court would have the benefit of hearing direct testimony of independent witnesses. It would often be the word of the complainant against that of

the alleged harasser. The general principle in the trial of criminal sexual

offences is that as a rule of prudence, the Court normally looks for some

corroboration of the complainants testimony to satisfy its conscience that the complainant is telling the truth and that the accused has not

However, the Court notes that minimum

corroboration is required where a Complainants evidence makes a deep impression of veracity.

been falsely implicated. ……

On judicial review, the High Court, despite agreeing with the Industrial Courts finding that an allegation of sexual harassment must be adequately corroborated, found that on the facts, the allegations of sexual harassment by the complainant were not corroborated as required and in most cases were riddled with contradictions and gave rise to suspicion.

What to do when you have been sexually harassed?  Be firm and tell the

What to do when you have been

sexually harassed?

Be firm and tell the harasser that his/her conduct/attitude is unwelcomed and you wish for it to stop.

If harasser persisted, talk to someone in the organization who could help you, i.e. personnel officer or sexual harassment counselor or employee/union representative.

Remember to record the details of each event; date, time, location, what happened, what was said and the names of

any witnesses or others victimized by the sexual

harassment.

What to do when you have been sexually harassed?  Write to the offender, including

What to do when you have been

sexually harassed?

Write to the offender, including description, date and time of the unwelcomed conduct/attitude, clear statement that you want it to stop and the warning of further action for non-compliance. Make a copy for your personal records and consider having someone witness the transfer of the

letter.

If your manager/supervisor is harassing you, consider

speaking to someone more senior, or your personnel officer

and union representative, or seek help from the Labor Ministry.

Actions by Employer and Remedies for Failure to Take Action The Code  encourages employers

Actions by Employer and Remedies

for Failure to Take Action

The Code

encourages employers in any organization to

establish an in-house mechanism to strategically

deal with complaints of sexual harassment.

Article 16 of the Code encourages employers to

develop a separate complaint procedure to deal specifically with the sensitive nature of such

complaints.

Actions by Employer and Remedies for Failure to Take Action  Article 18 suggests that

Actions by Employer and Remedies

for Failure to Take Action

Article 18 suggests that a complaint procedure should contain at least the following elements:

A

step

by

step

procedure

for

reporting

and

processing

of

a

complaint with a suitable time-limit for each step

An investigation procedure; and

An appeal procedure to enable dissatisfied party to appeal against

the outcome of an investigation to a higher authority.

Actions by Employer and Remedies for Failure to Take Action Employment Act 1955 - S.

Actions by Employer and Remedies

for Failure to Take Action

Employment Act 1955

-S. 81B(1) requires employer or any class or employers to inquire into a complaint of sexual harassment in a manner prescribed by the Minister.

-S. 81B(2) provides that when employer refuses to inquire

into such complaints, the employer shall inform the complainant of the refusal and the reasons for refusal in

writing, not later than 30 days after the date of the receipt

of the complaint.

Actions by Employer and Remedies for Failure to Take Action  S. 81B(3) sets out

Actions by Employer and Remedies

for Failure to Take Action

S. 81B(3) sets out reasons for which employer may refuse to inquire into such complaints:

(a) complaint of

sexual harassment has previously been

inquired into and no sexual harassment has been proven; and

(b) employer is of the opinion that complaint of sexual harassment is frivolous, vexation or is not made in good

faith.

Actions by Employer and Remedies for Failure to Take Action Employment Act 1955 - Remedies

Actions by Employer and Remedies

for Failure to Take Action

Employment Act 1955 - Remedies

S. 81B(4): Complainant who is dissatisfied with the

refusal of the employer to inquire into the complaint of sexual harassment may refer the

matter to the Director General.

Actions by Employer and Remedies for Failure to Take Action S. 81C : If the

Actions by Employer and Remedies

for Failure to Take Action

S. 81C: If the employer is satisfied that sexual harassment is proven under S. 81B(1), the employer shall take disciplinary action against the harasser if the harasser is

also an employee of the organization.

In the case where harasser is not employed in the

organization, the employer shall recommend that the

harasser be brought before appropriate disciplinary authority to which the harasser is subject to.

Actions by Employer and Remedies for Failure to Take Action  S. 81D(1) : When

Actions by Employer and Remedies

for Failure to Take Action

S. 81D(1): When a complaint of sexual harassment is made to the Director General, the Director General shall assess the complaint and may direct an employer to inquire into such complaint.

S. 81E(1): When the Director General decides that sexual harassment is proven, the complainant may terminate his/her contract of service without notice, and if the complainant does, he/she will be entitled to:

(a) wages as if the complainant has given the notice of

termination

(b) termination benefits and indemnity provided under the Act or

contract of service

Actions by Employer and Remedies for Failure to Take Action  S. 81F : Any

Actions by Employer and Remedies

for Failure to Take Action

S. 81F: Any employer who fails to inquire into complaints of sexual harassment under S. 81B(1) commits an offence and shall be liable to a fine not exceeding ten thousand ringgit, irrespective of the wages of the employee.

Case Analysis – Constructive Dismissal  In Sitt Tatt Bhd. v Flora Gnanapragasam & Anor

Case Analysis Constructive

Dismissal

In Sitt Tatt Bhd. v Flora Gnanapragasam & Anor (2005) 7 CLJ 522, the court held;

Facts:

The Claimant claimed that she was constructively dismissed by acts of

sexual harassment by her superior, she further submitted that she has

approached two senior officers to complaint about the harassments but neither of them took any steps to rectify the situation.

Held:

The two senior officers, Desmond and Nik Murad were guilty of

dereliction of duty in not taking any remedial measures when the Claimant

informed them of the sexual harassments

Claimants superior. All the incidents were reported to them when the claimant

could no longer tolerate the harassments. The facts showed that they had connived and condoned the acts of Sivananda. The Claimant was left with no

other alternative but to consider herself constructively dismissed and she had

lawfully done so.

committed by Sivananda, the