Shook Lin k Bok EST 1918

KUALA LUMPUR

Sexual Harassment &

Gender Discrimination

Labour Law Conference

10 April 2015
Janice Anne Leo,
Partner.
 Shook Lin k Bok EST 1918
KUALA LUMPUR

What is Sexual Harassment?

Understanding the Code
Code of Practice on the Prevention and Eradication of Sexual Harassment in
the Workplace (the Code), in Article 5 discusses 5 forms of Sexual
Harassment:

Verbal Harassment: offensive or suggestive remarks, jokes or questions.

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 JosephDCruz (2005) 2 LNS 1904:-

Facts: The employee was dismissed by the Company nine charges of verbal
sexual harassment were preferred against him 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;

(c) That she did the above matters on purpose for you and other staff to see;
 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
le 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
becoming of you as an employee of the Bank.
 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.
 Shook Lin k Bok EST 1918
KUALA LUMPUR

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 statement by the Management to the employees

prohibiting sexual harassment in the organization.

a clear definition of sexual harassment to ensure that

employees are aware of unwelcomed and offensive
conducts and attitudes.
 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

 Shook Lin k Bok EST 1918
KUALA LUMPUR

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 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 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 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 tengok and 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 Highlands then 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 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 (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

sini with 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 Malaysia Code of Practice on Sexual Harassment in
Workplace by Tengku Dato Omar 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 clients, even at night.
 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.
 Shook Lin k Bok EST 1918
KUALA LUMPUR

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 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. 81B(1) requires employer or any class of 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 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.
 Shook Lin k Bok EST 1918
KUALA LUMPUR

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 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 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 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 (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 committed by Sivananda, the
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.
 GENDER
DISCRIMINATION
 Gender Discrimination
Gender discrimination or sexism, is
prejudice or discrimination based on
a persons sex or gender. It affects
both men and women, but is more
apparent toward women.

It has been linked to stereotypes and

gender roles, and may include the
belief that one sex or gender is
intrinsically superior than the other.
 History &Development of
Gender Discrimination
In various ancient societies, the Stone Age, Ancient
Egypt and the Anglo-Saxon era, women held many
equal positions with men and were commonly
afforded equal status. After the adoption of
agriculture and sedentary cultures, the concept
that one gender was inferior to the other was
established; most often this was imposed upon
women and girls.

Gender discrimination is closely related to gender

stereotypes formed partly because of patriarchy.
Patriarchy is a social system in which males are the
primary authority figures central to social
organisation, occupying roles of political leadership,
moral authority, control of property and where
 Gender Discrimination
Most anti-discrimination legislation
follows a well-trodden path : those who
are equal deserve equal treatment,
and, conversely, those who are
differently.

Sandra Fredman, A Difference with

Distinction : Pregnancy and Parenthood
Reassessed, 110 The Law Quarterly
Review at p 106
Gender Discrimination in Malaysia
Malaysia is a signatory to the Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW)

Initially, the Government of Malaysia declared that Malaysias

accession to CEDAW was subject to the understanding that the
CEDAW provisions would not conflict with the provisions of
Islamic Sharia Law and the Federal Constitution of Malaysia i.e.
the Government was not bound by Articles 2(f), 5(a), 7(b), 9 and
16 of CEDAW.

However, on 6 February 1998, the Government of Malaysia

withdrew its reservations with regards to those Articles and is now
acceded to all provisions of the CEDAW.
Gender Discrimination in Malaysia
Art. 2 - State Parties condemn discrimination against women in all its
forms, agree to pursue all appropriate means and without delay a
policy of eliminating discrimination against women and, to this end,
undertake :
(f) to take all appropriate measures, including legislation to
modify or abolish existing laws, regulations, customs and practices
which constitute discrimination against women.

Art 5 - State parties shall take all appropriate measures :

(a) to modify the social and cultural patterns of conduct of men
and women, with a view to achieving the elimination of prejudices and
customs and all other practices which are based on the idea of the
inferiority or the superiority of either of the sexes or on stereotyped
roles for men and women.
Gender Discrimination in Malaysia
Art. 7 - State Parties shall take all appropriate measures to eliminate
discrimination against women in the political and public life of the
country and, in particular, shall ensure to women, on equal terms with
men, the right :
(b) to participate in the formulation of government policy and the
implementation thereof and to hold public office and perform all public
functions at all levels of government.

Art 9
1. States Parties shall grant women equal rights with men to acquire,
change or retain their nationality. They shall ensure in particular
that neither marriage to an alien nor change of nationality by the
husband during marriage shall automatically change the
nationality of the wife, render her stateless or force upon her the
nationality of the husband.
2. States Parties shall grant women equal rights with men with
respect to the nationality of their children.
Gender Discrimination in Malaysia
Art 16
1. States Parties shall take all appropriate measures to eliminate
discrimination against women in all matters relating to
marriage and family relations.

2. The betrothal and the marriage of a child shall have no legal

effect, and all necessary action, including legislation, shall be
taken to specify a minimum age for marriage and to make the
registration of marriages in an official registry compulsory.
Gender Discrimination in Malaysia

It should be noted that there is no specific

legislation that prohibits any form of
discrimination, be it gender, race, disability or
religion.
Gender Discrimination in Malaysia
Federal Constitution, Article 8, Equality

1) All persons are equal before the law and entitled to the equal
protection of the law.

2) Except as expressly authorized by this Constitution, there

shall be no discrimination against citizens on the ground only
of religion, race, descent, place of birth or gender in any law
or in the appointment to any office or employment under a
public authority or in the administration of any law
relating to the acquisition, holding or disposition of property
or the establishing or carrying on of any trade, business,
profession, vocation or employment.
Courts & Cases in Malaysia

In administering the rules of natural justice and fair

labour practice, it has become entrenched that
gender discrimination is frowned upon by the
administration of justice.

The Courts have in recognising gender

discrimination, attempted to balance the rights of
both employers and employees.
 Cases in Malaysia
In the case of Beatrice A/P AT Fernandez v Sistem Penerbangan Malaysia
& Ors [2005] 3 MLJ 681,

Facts
The employee, an air stewardess with Malaysian Airlines System
(MAS), was dismissed when she fell pregnant in contravention of the
terms of the collective agreement between the MAS Employees Union
(MASEU) and MAS.

Art 2(3) required her to resign if she became pregnant more than 5 times
and in the event she failed to do so, MAS would have the right to
terminate her services. She subsequently became pregnant fpr the 5 th
time and refused to resign. In accordance with the express terms of the
collective agreement, MAS terminated her services.
 Cases in Malaysia
In Beatrice A/P AT Fernandez v Sistem Penerbangan
Malaysia & Ors [2005] 3 MLJ 681,

The employee commenced proceedings at the High Court

claiming that the provisions of the collective agreement were
discriminating in nature and thus contravened Art 8 of the
Federal Constitution.
 Cases in Malaysia
Beatrice A/P AT Fernandez v Sistem Penerbangan Malaysia & Ors [2003]
4 MLJ 466, the Court of Appeal held :

The discrimination prohibited by Art 8(2) of the Federal Constitution, as

at the date applicable to this case, was on the ground only of religion,
race, descent or place of birth, none of which applied to this case. The
amendment to the Constitution which added the word gender to that
provision only took effect from 28 September 2001 c/f the collective
agreement which was entered into in 1988.

On the facts, the case is caught by Art 8 of the Federal Constitution.

Clause (1) of Article 8 declares that all persons are equal before the law
and entitled to equal protection of the law. A collective agreement is not
law in the context of Art 8. It is a contract when taken cognizance of by
the Industrial Court, is enforceable as an award of that Court. In other
words, it is similar to a Court Order. Even a Court Order is not law in
the context of Art 8.
 Cases in Malaysia
Beatrice A/P AT Fernandez v Sistem Penerbangan
Malaysia & Ors,

Issue before the Federal Court : Whether Art 8 of the

Federal Constitution applied to the terms and
conditions of the collective agreement which were
itself discriminatory in nature .
 Cases in Malaysia
Beatrice A/P AT Fernandez v Sistem Penerbangan Malaysia & Ors [2005]
3 MLJ 681, the Federal Court agreeing with the Court of Appeal held:
A collective agreement taken cognizance of by the Industrial Court is
only enforceable as an Award of the Industrial Court and binding on the
parties to it. Constitutional law does not extend its substantive or
procedural provisions to infringements of an individuals legal right by
another individual.

Due to the fact that the employee was employed as a Grade B category
flight stewardess, her right to equality was measured against the
rights of the other flight stewardesses in the same category. Further,
the employee chose to be appointed as a flight stewardess and agreed to
be bound by the collective agreement.

The FC did not address the issue of whether the Applicants right to
work and the right to continued employment during her pregnancy; and
on the applicability of CEDAW.
 Cases in Malaysia
In Noorfadilla bt Ahmad Saikin bin Basirun & Ors [2012] 1 MLJ 832

Facts :
the employee applied for and obtained employment as a Guru Sandaran
Tidak Terlatih (GSTT), which she received a placement memo for. At a
briefing before her posting, the Plaintiff was questioned as to whether
she was pregnant. When she admitted that she was 3 months pregnant,
her placement memo was withdrawn.

The Plaintiff demanded her employment as GSTT be restored but

received no written reply and as such, filed a claim at the High Court
against the relevant Education Officers, the State Director of the
Education, the Ministry of Education and the Government of Malaysia.
 Cases in Malaysia
In Noorfadilla bt Ahmad Saikin bin Basirun & Ors [2012] 1 MLJ 832

Facts :

Her complaint was that the GSTT post was revoked and withdrawn on
the sole ground that she was pregnant and this was tantamount to
discrimination, against Art 8(3) of the Federal Consitution.
 Cases in Malaysia
Noorfadilla bt Ahmad Saikin bin Basirun & Ors [2012] 1 MLJ 832, the
High Court held that :

the word 'gender' was incorporated into Art 8(2) of the Federal
Constitution in order to comply with Malaysia's obligation under the
Convention on the Elimination of all Form of Discrimination against
Women (CEDAW). It is settled law that the CEDAW has the force of
law. In interpreting Art 8(2) of the FederalConstitution it was the court's
duty to take into account the government's commitment at an
international level.

It was a basic biological fact that only women had the capacity to
become pregnant and thus discrimination on the basis of pregnancy
was a form of gender discrimination. Hence it was found that the
plaintiff should have been entitled to be employedeven if she was
pregnant.
 Cases in Malaysia
In Air Asia Bhd v Rafizah Shima bt Mohamed Aris [2014] 5 MLJ 318
:

Facts : The employee signed an agreement with Air Asia which

contained a clause forbidding her from falling pregnant during the
duration of a 4 year aircraft maintenance engineering training
programme she was chosen to undergo and if she fell pregnant, it would
be a repudiation of the agreement.

Air Asia terminated the agreement and her employment when it

discovered that the employee became pregnant during the final year of
the course. The employee applied to the High Court to declare void the
clause in breach of Arts 8 and 11 of the Federal Constitution and
CEDAW.
 Cases in Malaysia
Air Asia Bhd v Rafizah Shima bt Mohamed Aris

The High Court in allowing her application, held:

the CEDAW has the force of law and is binding on its

member states, including Malaysia.

the clause of the agreement is illegal, null and void as it

had the effect of discriminating against the employees
rights as married women and contravenes Art 8 of the
Federal Constitution and CEDAW.
 Cases in Malaysia

Air Asia Bhd v Rafizah Shima bt Mohamed Aris

Court of Appeal in allowing Air Asias appeal, held :

All clauses in the agreement, especially Cl 5.1(4), did

not restrain marriage and/or prohibit pregnancy if the
employee completed the training programme in the
manner stipulated in the agreement. Therefore, the
Clauses were not discriminatory in nature.
 Cases in Malaysia
Air Asia Bhd v Rafizah Shima bt Mohamed Aris (cont)
Court of Appeal :

CEDAW did not have the force of law in Malaysia because the same
was not enacted as local legislation. For a treaty to be operative and
enforceable in Malaysia, it required legislation by Parliament. Without
express incorporation into domestic law by an Act of Parliament
following ratification of CEDAW, the provisions of the international
obligations in CEDAW did not have any binding effect. Ratification
alone did not make the provisions of treaties applicable for municipal
law.

Also, in Malaysia, the Federal Constitution was silent as to the primacy

of international law or municipal law or vice versa. If there was a
conflict, the general rule was that existing municipal law would prevail.
Gender Discrimination in the UK
The relevant legislation in the UK is the Equality Act 2010 (EA 2010).
The EA 2010 prohibits discrimination against certain protected
characteristics as follows (s. 4) :-

I. age
II. being or becoming a transsexual person
III. being married or in a civil partnership
IV. being pregnant or having a child
V. disability
VI. race including colour, nationality, ethnic or national origin
VII.religion, belief or lack of religion/belief
VIII.sex
IX. sexual orientation
Gender Discrimination in the UK
Protection is afforded in these situations :

I. at work
II. in education
III. as a consumer
IV. when using public services
V. when buying or renting property
VI. as a member or guest of a private club or association
Gender Discrimination in the UK
Discrimination can come in one of the following forms :

1. direct discrimination (s. 13) - treating someone with a protected

characteristic less favourably than others

2. indirect discrimination (s. 19) - putting rules or arrangements in

place that apply to everyone, but that put someone with a protected
characteristic at an unfair disadvantage

3. harassment (s. 26) - unwanted behaviour linked to a protected

characteristic that violates someones dignity or creates an
offensive environment for them

4. victimisation (s. 27) - treating someone unfairly because theyve

complained about discrimination or harassment
The Way Forward in Malaysia
In the context of gender discrimination, the recognition and
protection of womens rights by the law remains vital. While the
right to equality and non-discrimination is enshrined within the
Federal Constitution under art 8(1) and (2), its efficacy is called
into question when womens rights are not enforced as such due to
the severe limitations that affect its interpretation

Unless the courts are willing to take up the challenge and advance
the cause of gender justice by outlawing discriminatory laws,
practices and policies by expanding the scope of the Federal
Constitution, then the true value of these rights will remain as
nothing more than the paper they are written on. Judicial activism
and interpretation amplified the attempt by the courts to ensure
the relevancy of the constitution to best serve the society it has been
created for.
The Way Forward in Malaysia
The other alternative is legislative intervention. As the Federal
Court noted, Unless and until the Employment Act 1955 is
amended to expressly prohibit any term and condition of
employment that requires flight stewardesses to resign upon
becoming pregnant clauses such as the one in the Beatrice
Fernandez case remain valid and enforceable.

Gender Discrimination in Employment How far does Art 8 of

the Federal Consitution guarantee gender equality? [2006] 6
MLJ xliv, Jashpal Kaur Bhatt.
Sexual Harassment &
Gender Discrimination

Labour Law Conference

10 April 2015

THANK YOU!

Shook Lin k Bok EST 1918

KUALA LUMPUR

Janice Anne Leo