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A REVIEW OF THE AMENDMENTS UNDER THE EMPLOYMENT ACT 1955 WITH

RESPECT TO SEXUAL HARASSMENT AT THE WORKPLACE

Article · June 2015

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[2015] 1 LNS(A) l Legal Network Series 1

A REVIEW OF THE AMENDMENTS UNDER THE EMPLOYMENT

ACT 1955 WITH RESPECT TO SEXUAL HARASSMENT AT THE
WORKPLACE

by

DR JASHPAL KAUR BHATT*

Introduction

There has been much social commentary by women’s interest groups and
academic research on workplace related sexual harassment .[1] The main
thrust of these commentaries and research has been on the lack of a
comprehensive legal framework to protect women from sexual harassment.
The concern is exacerbated by the advent of the new social media created
by social networking and the availability of technologies such as smart
phones, which have also led to more invasive spheres for sexual harassment
to take place. The legal regulation of sexual harassment at the workplace
is then an important step in ensuring the protection of victims against
sexual harassment and in the prevention of such incidences. This article
examines the recent amendments introduced by the Employment
(Amendment) Act 2012 (Malaysia, Act 1419) [2] to the Employment Act 1955
(Malaysia, Act 265) (hereafter referred to as the EA) specifically aimed at
dealing with sexual harassment at the workplace in Malaysia. Despite this
new development, there has been criticism about the new legislative
provisions. [3] The article seeks to evaluate the new amendments and to
determine the effectiveness of the legal redress available to victims of
sexual harassment under the EA.
[2015] 1 LNS(A) l Legal Network Series 2

What amounts to sexual harassment?

According to the Australian Human Rights Commission, sexual harassment

may include staring or leering, unnecessary familiarity, such as
deliberately brushing up against you or unwelcome touching, suggestive
comments or jokes, insults or taunts of a sexual nature, intrusive questions
or statements about your private life, displaying posters, magazines or
screen savers of a sexual nature, sending sexually explicit emails or text
messages, inappropriate advances on social networking sites, accessing
sexually explicit internet sites, requests for sex or repeated unwanted
requests to go out on dates, behaviour that may also be considered to be an
offence under criminal law, such as physical assault, indecent exposure,
sexual assault, stalking or obscene communications. [4]

The above examples of behaviours considered to amount to sexual

harassment are reflective of the diverse nature of sexual harassment. These
diverse forms of conduct can make the legal regulation of sexual
harassment a complicated matter. In Malaysia, it has been noted that sexual
harassment could refer to conduct which occurred even in full view of the
other employees and with the victim fully clothed. In Freescale
Semiconductor Malaysia Sdn Bhd v. Edwin Michael Jalleh & Anor, [5] the
Industrial Court and High Court had viewed the conduct of the harasser in
touching or patting the buttocks of the victims as sexual harassment and a
misconduct. However, it was determined that the dismissal of the harasser
by the employer was unjustified and harsh after taking into consideration
the following matters:
[2015] 1 LNS(A) l Legal Network Series 3

‘[T]he incident happened in full view of the colleagues of the

claimant and the victim. It was an open area on the factory floor and
there were a number of factory operators working at their respective
work stations. The claimant and the victim were attired in s mocks
which were of knee length, masks with only the eyes exposed and
caps. The victim’s flesh was not violated by the claimant as it was
protected by layers of cloth. The entire act of slapping the victim on
her buttocks would have taken a few seconds. It was not a prolonged
act. The victim had reacted in defence by screaming and scolding the
claimant. There was no further danger to her as she was surrounded
by her colleagues’. [6]

In the appeal against both decisions to the Court of Appeal, his Lordship
Abdul Wahab Patail, JCA made the following observation:

‘The misconduct was not of any inadvertent or accidental physical

contact, but wilful. One must expect in a multicultural society such
as in this country, that the workplace is also multicultural. In su ch
multicultural work environment, industrial harmony, one, if not the
main object(s) of industrial relations, is achieved not by one acting
on the norms acceptable to himself, but he must be sensitive to what
is acceptable by others’. [7]

His Lordship therefore reasoned that conduct considered as amounting to

sexual harassment has to be determined ‘against norms acceptable by
others’. The reasoning reflects the manner in which sexual harassment has
been defined under the EA as any unwanted conduct of a sexual nature
which is offensive or humiliating or is a threat to the well-being of an
[2015] 1 LNS(A) l Legal Network Series 4

employee in the course of employment. [8] Thus, it is neither the harasser’s

intention nor his standard of behaviour that is called into question .

Dealing with sexual harassment

Sexual harassment has been dealt with under sex discrimination law, labour
law and even criminal law in many countries. In Malaysia, in 1999 the
government introduced a Code of Practice on the Eradication of Sexual
Harassment at the Workplace 1999 (the Code), [9] which addressed sexual
harassment at the workplace which unfortunately did not have the force of
law. [10] Sexual harassment was therefore dealt with in a piecemeal
approach under various statutory provisions and with limited remedies
available to the victims. [11] The recent amendments to the EA in addressing
sexual harassment at the workplace are thus an important and timely
legislative development.

Sexual harassment under the EA

The most important change made to the EA has been the creation of a new
part of the EA, Part XVA, [12] which deals with sexual harassment in the
workplace. The newly created portion of the EA is a significant aspect of
legal reform aimed at addressing the calls for specific legislative
intervention in dealing with sexual harassment. [13] It is a reflection of the
importance of the issue, particularly to women workers in Malaysia. [14]

Nonetheless, there has been criticism that the government did not introduce
a new act to specifically deal with sex based harassment in its many
forms. [15] In contrast, in the U.K. and in Australia, discrimination law,
specifically sex discrimination law, addresses the various forms of
[2015] 1 LNS(A) l Legal Network Series 5

harassment, including sexual harassment. For example, the Australian Sex

Discrimination Act 1984 (Cth) (SDA) makes it unlawful for a person to
sexually harass another person in a number of areas including employment,
education, the provision of goods and services and accommodation. [16]

The criticism that specific legislation has not been introduced to deal with
the various other forms of harassment in Malaysia may therefore be
justified. [17] The amendments to the EA are too narrow in their focus as
only employment related sexual harassment is dealt with. Other forms of
harassment have not been addressed, such as street harassment occurring
in the public spaces which can comprise sexual/verbal comments,
unsolicited and unwanted touching and physical contact, attempts to coerce
and individual into complying with sexual demands, ogling, stalking and
obscene phone calls. [18] Such a piecemeal approach to harassment, ie, as a
work related matter only, limits the scope of protection available to women
against sex based harassment. Such an approach may even be said to
disguise the gender based subordination of women in society. [19]

Despite this setback, the creation of Part XVA is a welcomed step towards
legislative intervention in respect of sexual harassment at the workplace,
which is primarily faced by women workers. The International Labour
Organisation or ILO has noted that the vast majority of workers subjected
to sexual harassment have been women workers [20] and the ILO therefore
refers to sexual harassment as a violation of the fundamental rights of
workers, a safety and health hazard, a problem of discrimination, as an
unacceptable working condition and a form of violence. [21]
[2015] 1 LNS(A) l Legal Network Series 6

It is noted however that the amendment has described sexual harassment

in terms of the male sex rather than the female sex, which is odd as most
victims of sexual harassment are female rather than male as seen in the
number of complaints to the state agencies and as disclosed in the cases
that have come before the Industrial Court. [22] Nevertheless, it is
understood that under the law a reference to the male also includes the
female and that sexual harassment affects male workers also. [23]

The next striking feature of the amendments has been that a victim is now
entitled to lodge a complaint to the employer and to require the employer
to investigate the complaint of sexual harassment. [24] Should the employer
decide not to investigate the complaint, on the ground that a previous
investigation had not proven the complaint or that the complaint is
‘frivolous, vexatious or not made in good faith’, [25] the employer must
inform the complainant in writing within 30 days of receiving the
complaint, the reasons for the refusal to investigate the complaint. [26]

Once the employer investigates the complaint and finds the complaint
proven, the employer is authorised to take a number of actions against th e
harasser, also an employee, such as a dismissal, demotion, suspension on
unpaid leave not exceeding two weeks, or any lesser punishment which the
employer deems ‘just and fit’. [27] Interestingly, the amendments to the EA
did not define sexual harassment as a form of misconduct, [28] even though
in cases before the courts, it is clear that sexual harassment by an employee
is considered a serious form of misconduct. [29] The EA however lists out
the punishments which can be imposed by the employer in respect of sexual
harassment, which are similar to those for a misconduct. [30]
[2015] 1 LNS(A) l Legal Network Series 7

Other than lodging a complaint of sexual harassment to an employer, the

victim may also lodge a complaint with the Director General of Labour,
who is then empowered to assess the complaint and to direct the employer
to investigate the complaint. [31] This provision allows a third party to
objectively assess the situation outside the confines of the employment
relationship.

Having broadly discussed the main features of the recent amendments, the
following critique canvasses matters that the amendments have not
adequately addressed in respect of dealing with complaints of sexual
harassment at the workplace:

(1) Definition of sexual harassment

Section 2 (g) of the Employment (Amendment) Act 2012 has inserted

a new definition of sexual harassment in section 2 EA. The definition
of ‘sexual harassment now reads as follows:

‘sexual harassment means 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’.

This definition satisfies the three main elements of sexual harassment

definitions generally:

(i) the occurrence of a conduct that is sexual in nature;

(ii) the conduct is unwanted; and

[2015] 1 LNS(A) l Legal Network Series 8

(iii) the conduct is experienced as threatening the victim’s

ability to perform her job. [32]

In light of the above definition, the following issues are noted:

(a) While sexual harassment is defined to comprise verbal, non-

verbal, visual, gestural or physical conduct, does the definition
of sexual harassment include acts done in cyber space or cyber
sexual harassment?

In claims of cyber-sexual harassment, the harasser uses the internet,

social media and/or text messages to convey unwelcome comments,
requests or images of a sexual nature to others at work. [33] At most
workplaces today, internet based communication technology using
social networking sites and media, have given rise to new
possibilities of harassment whether in emails, text messages or
Smses, WhatsApp, Viber, Facebook Twitter, Instagram and other
forms of digital communication. These forms of digital
communication are accessible on personal and company desktops,
laptops, iPads and iPhones. Such forms of communication between
employees is seen as ‘quick, informal and instantaneous’, providing
flexibility and efficiency in communication.[34] However, it also
results in blurred lines between acceptable and unacceptable
behaviour at the workplace. [35] When such communication result in
sexually harassing content or communication, can sexual harassment
law apply?
[2015] 1 LNS(A) l Legal Network Series 9

In Australia, it has been noted that the sexual harassment provisions

in the SDA apply in the context of acts using ‘a postal, telegraphic,
telephonic or other like service’ which cover acts of unwelcome
conduct of a sexual nature involving social media, or by email or text
message. [36] This warrants the question of whether the definition of
sexual harassment under the EA covers cyber forms of sexual
harassment. The reference to ‘visual’ forms of sexual harassment
under the definition of sexual harassment in s. 3 EA suggests that
cyber sexual harassment is also included under the definition. In ST
Microelectronics v. R JesudasS Raghavan, [37] the complaints of
sexual harassment made against the Respondent related to his verbal
and text messages or SMS invitations to the victim to have sex with
him, which the Industrial Court upheld as amounting to sexual
harassment.

In contrast to private sector workers covered under the EA, cyber

sexual harassment is however more clearly addressed in respect of
public or civil servants. Public servants are subject to the Service
Circular No. 22 of 2005, issued by the Public Service Department of
Malaysia, which provides guidelines for dealing with sexual
harassment at the workplace and makes reference to the Public
Officers (Conduct and Discipline) Regulations 1993.[38] Rule 4A of
the Regulations expressly forbids sexual harassment among civil
servants. Amongst behaviour considered to amount to sexual
harassment, the Circular also mentions the sending of dirty text
messages like SMSes (short messaging service), MMSes
(multimedia messaging service), e-mail, letter or any forms of
[2015] 1 LNS(A) l Legal Network Series 10

communication sexual in nature. [39] It is clear that cyber sexual

harassment is addressed in respect of public servants.

(b) While the definition of sexual harassment refers to physical

conduct, the question that arises is whether more serious
physical conduct, such as a molestation or even rape, are better
dealt with as criminal offences.

On one hand, it is undeniable that some forms of sexual harassment

can include criminal offences under the Penal Code such as a
physical molestation, sexual assault and rape. [40] On the other hand,
such physical conduct is more than merely ‘offensive or humiliating
or even threats to the well-being of a victim’. It may be that victims
of such physical conduct would be encouraged to have the matter
dealt with as a criminal matter rather than as a labour or workplace
issue. While the perpetrator will face penal sanctions and will
ultimately lose his job, the victim is left uncompensated. In Colgate-
Palmolive (M) (Sdn) (Bhd) v. Yap Shyan Meng, [41] the harasser faced
criminal charges of outraging the modesty of two employees in the
Magistrate’s Court and was given a discharge not amounting to an
acquittal. Upon his return to work, he faced a domestic inquiry over
the claims of sexual harassment involving the same employees. He
was found guilty of the misconduct in respect of the sexual
harassment claims and dismissed from his employment. The harasser
then challenged his dismissal under a s. 20(1) IRA claim of unjust
dismissal and lost. [42] This case clearly reflects the inadequacy of
compensatory remedies available to the victims of sexual harassment
[2015] 1 LNS(A) l Legal Network Series 11

for their traumatic experience. In contrast, the harasser has the option
of challenging his dismissal. In more serious cases of sexual
harassment, the consolation for the victim is that the harasser will
either be criminally penalised with a custodial sentence or fined
(depending on the offence) or at worse, face disciplinary proceeding
at the workplace for his misconduct and suffer job related
repercussions such as a demotion, loss of salary or ultimately, the
loss of his job. [43]

When a serious sexual harassment matter is determined under

criminal law, the prosecution of the offence is a matter between the
prosecution and the perpetrator. However, there are a number of
reasons why the criminal law approach is not always preferred by
victims of serious sexual harassment. The reasons include the higher
burden of proof for criminal prosecutions as opposed to civil suits,
the requirement of intention and the penal sanctions which seek to
punish the perpetrator rather than to compensate the victim for the
trauma or injury suffered or even the loss of her job, service and
salary, if she was dismissed.[44] One other reason is that employer
liability is not considered under a criminal prosecution for sexual
harassment. [45] As an employer is under a duty to ensure the health
and safety of an employee at the workplace, [46] some level of liability
must be attributed to an employer when incidences of sexual
harassment arise in any workplace. Employer liability is an important
aspect in protective and preventive measures in dealing with sexual
harassment at the workplace. For example, under the Code,
employers are required to introduce a workplace policy against
[2015] 1 LNS(A) l Legal Network Series 12

sexual harassment, as a preventive measure. [47] As many employers

in Malaysia have been slow to introduce sexual harassment
policies, [48] employer liability will remain an important issue for
employees who have suffered the result of their employers’ lack of
action in seriously tackling sexual harassment at the workplace.

As a result, the EA has not addressed the issue of serious sexual

harassment involving criminal offences, in a manner that punishes
the perpetrator with penal sanctions to reflect the severity of the
offence, while at the same time providing the victim with
compensation for the sexual harassment suffered.

(c) The definition does not address sexual coercion

One more concern with the definition of sexual harassment under the
EA is that unlike the Code, which defined sexual harassment in terms
of sexual coercion and sexual annoyance, [49] the current definition of
sexual harassment refers only to sexual annoyance. Sexual
annoyance is sexually related conduct which is offensive, or hostile
or intimidating to the victim but has no direct link to any job benefit.
Sexual annoyance is usually seen in respect of co-workers and third
parties such as customers and other people who have access to the
workplace. The focus of sexual annoyance is on the creation of a
hostile work environment.

In contrast, sexual coercion is sexual harassment which results in

some direct consequence to the victim’s employment. Sexual
coercion usually involves a harasser in a position of authority over
[2015] 1 LNS(A) l Legal Network Series 13

the victim with the result that the victims would be susceptible to
retaliatory action by the harasser if she rejects the harasser.

So, has the definition missed the mark in not addressing sexual
coercion which affects an employee’s job? Sexual coercion has been
addressed in a number of cases before the courts. For example, in Md
Salehuddin Othman v. New Straits Times Sdn Bhd,[50] the harasser,
the Group Editor had threatened the victim that as the Group Editor,
he was free to do what he felt like doing and even intimidated the
victim by saying he could sack people she knew, [51] in Malayan
Banking Berhad v. Md Nor Kassim & Anor,[52] female staff other than
the victim had not dared report the sexual harassment out of fear of
being victimized by the harasser, who was their superior at the
managerial level. The victim however lodged two police reports
against the harraser. [53] In both these cases, the courts decided against
the harassers. In G Flora v. Sitt Tatt Bhd [54] and Jennico Associates
Sdn Bhd v. Lilian Therera de Costa & Another, [55] the workers lost
their jobs as a result of a constructive dismissal and a resignation
which they alleged was due to the sexual harassment. These cases
attest to the fact that sexual harassment can have serious
consequences on a victim’s job performance, job benefits or
employment.

(d) The definition of sexual harassment states that it must arise out
of or in the course of employment. The question here is
whether incidents of sexual harassment outside working hours
or while ‘off duty’ conduct are excluded.
[2015] 1 LNS(A) l Legal Network Series 14

The answer it has been suggested depends on how the phrase ‘arising
from or in the course of employment’ is read by the courts.[56]
Conduct out of working hours could constitute sexual harassment if
such conduct results in a hostile work environment. [57] With the
advent of social media and smart phones, social media activities
during and after office hours may result in a hostile workplace
environment for employees adversely affected by sexual
harassment. [58]

In contrast, the Code has defined the ‘workplace’ in the context of

sexual harassment much more widely that the amendment to the
EA. [59] Under the Code, a ‘workplace’ in respect of sexual
harassment includes any employment related sexual harassment
occurring outside the workplace as a result of employment
responsibilities or employment responsibilities or employment
relationship. Situations under which such employment-related sexual
harassment may take place includes, but is not limited to:

• at work-related social functions;

• in the course of work assignments outside the workplace;

• at work-related conferences or training sessions;

• during work-related travel;

• over the phone; and

• through electronic media. [60]

[2015] 1 LNS(A) l Legal Network Series 15

(2) The grievance or complaints procedure prescribed under the EA has

also elicited some concerns:

(a) Employer’s Inquiry into complaints of sexual harassment is not

prescribed

The EA now creates a mandatory obligation on employers to

establish a complaints procedure in respect of complaints of
sexual harassment. Section 81B(1) EA states that ‘[u]pon
receipt of a complaint of sexual harassment, an employer or
any class of employers shall inquire into the complaint in a
manner prescribed by the Minister’.

The problem is that the manner of investigating the complaint

has not been set out under the Act. Thus the Code may be useful
in this respect as it clearly outlines the key requirements for
such an investigation, although no details have been provided
on the grievance procedure itself. [61] This weakness means that
employers may deal with sexual harassment on an ad hoc basis
using different procedures.

(b) Lack of certainty in addressing third party or outsider sexual

harassment

The ability of the employer to investigate a complaint of sexual

harassment poses problems when the harasser is not an
employee but an outsider, such as a customer or even a
supplier. Section 81C (b) EA provides that where the harasser
is not an employee, the employer shall recommend that the
[2015] 1 LNS(A) l Legal Network Series 16

harasser be brought before a disciplinary authority to which

that person is subject. The provision suggests a number of
possibilities:

(i) that the outsider or third party should be brought before

a disciplinary authority he is subject to, means that if he is an
employee, he would be subject to the disciplinary authority of
his employer. However, the complication here is that the victim
is not the employee of the harasser’s employer. Despite the
generality of the right to lodge a complaint of sexual
harassment found in s. 81B (1) EA, it seems unlikely, although
plausible, for an employer to lodge a sexual harassment
complaint to the employer of an outsider or third party
harasser. It is unfortunate that s. 81C (b) EA refers to the
employer as opposed to the employee. It should be the right of
an employee to lodge the complaint of sexual harasser against
the third party harasser’s employer. Thus s. 81B (1) fails to
adequately address the issue of third party sexual harassment.

(ii) that the victim may have to lodge her complaint with the
DGL under s. 81D(1) EA in the hope that the DGL will refer
her complaint to the third party harasser’s employer for action
to be taken against the harasser in respect of the victim who is
not its employee. The fact that s. 81D (1) EA refers to ‘an
employer’ and not the victim’s or her employer suggests that
this approach may be possible. Alternatively, under s. 81D (3)
[2015] 1 LNS(A) l Legal Network Series 17

EA, where the employer is a sole trader, the DGL may inquire
into the complaint himself.

At the core of the difficulty with s. 81C (b) EA is dealing with

third party sexual harassment in that the outsider is not subject
to the victim’s employer’s authority. The employer,
nonetheless, remains liable to the victim under the tort of
negligence, for its failure to prevent sexual harassment from
taking place. [62]

(c) The EA provides a limited right to appeal against the decision

of an employer. [63] The employee who is unhappy with the
employer’s decision on her complaint about the sexual
harassment because the employer has decided not to
investigate the matter, [64] or is dissatisfied with the employer’s
decision, [65] may then refer the matter to the Director General
of Labour (DGL), who (a) if he thinks the matter should be
inquired into, direct the employer to conduct an inquiry; or (b)
if he agrees with the decision of the employer not to conduct
the inquiry, inform the person who referred the matter to him
that no further action will be taken. [66] It is suggested that the
reference to the DGL is fairly limited as the DGL is not
exercising his power to investigate or conciliate the matter in
an objective manner but merely refers the matter back to the
employer. [67]

Conclusion
[2015] 1 LNS(A) l Legal Network Series 18

From the above analysis, it is clear that the recent amendments to the EA
in respect of sexual harassment have given victims the right to lodge a
complaint with their employer and for the employer to take their complaint
seriously enough to investigate it, save where it had previously been
examined or is frivolous, vexatious or is not made in good faith.
Alternatively, the victim may refer the complaint directly to the DGL.

The main concerns that arise with respect to the definition of sexual
harassment under the EA are that sexual coercion was not included, the
question of whether cyber sexual harassment is covered and whether
harassment during after office hours or outside the workplace is covered.
There is also the concern over the failure to address serious forms of sexual
harassment which are offences under the Penal Code in such a way that
compensates the victim but also punishes the harasser. In respect of the
grievance or complaints procedure, the lack of a prescribed procedure
under the EA allows employers much leeway, the lack of liability or
accountability of outsiders for the sexual harassment of an employee, the
limited reference to the DGL and the limited right of appeal to the DGL
against the employer’s decision. The above analysis discloses that even
though it is acknowledged that the recent amendments to the EA are much
welcomed, there is still room for improvement in order to effectively deal
with the issue of sexual harassment at the workplace in Malaysia.

____________________________________________________________

* Senior Lecturer, Faculty of Law, Universiti Teknoloi MARA (UiTM).

Endnotes:
[2015] 1 LNS(A) l Legal Network Series 19

[1]
See for example, Prof Venkatraman Anantaraman, ‘SEXUAL HARASSMENT IN
THE WORK PLACE: LAW AND PRACTICE IN MALAYSIA’, [2004] 4 MLJ cii,
Mohd Nazari Ismail, Lee Kum Chee and Chan Foong Bee, ‘FACTORS
INFLUENCING SEXUAL HARASSMENT IN THE MALAYSIAN WORKPLACE’,
Asian Academy of Management Journal, Vol. 12, No. 2, 15-31, July 2007, Dr
Muzaffar Syah B Mallow, ‘THE CRIMINAL LAW APPROACH ON THE ISSUE OF
SEXUAL HARASSMENT IN THE WORKPLACE’, [2011] 1 MLJ cxi, Sarvinder
Kaur, ‘THE NECESSITY FOR A SEXUAL HARASSMENT ACT IN MALAYSIA’,
(2009) 17 IIUMLJ 271, Cecelia Ng and Zanariah Mohd Nor, ‘Sexual Harassment and
the Code of Practice in Malaysia: A Study of Pioneer Companies Implementing the
Code’, All Women’s Action Society (AWAM) and Women’s Development Collective
(WDC) (2001) and ‘Combating Sexual Harassment: The Way Forward’, presented at
the 11th Malaysian Law Conference, 8-10 November 2001, Kuala Lumpur and Ashgar
Ali Mohamed, ‘Sexual Harassment in the Workplace: The Law and Practice in
Malaysia’, [2004] 1 MLJ xlix.

[2]
Gazetted on 9 February 2012.

[3]
See Lee Li Hoong, ‘Dealing with Sexual Harassment in the Workplace’,
<http://www.skrine.com/dealing-with-sexual-harassment-in-the-workplace> at 8 June
2015.

[4]
See Australian Human Rights Commission webpage at
<https://www.humanrights.gov.au/our-work/sex-discrimination/guides/sexual-
harassment>.

[5]
[2013] 4 ILR 237, [16] 244.

[6]
Ibid, see [8] 242.

[7]
Ibid.

[8]
Section 2(1) EA.
[2015] 1 LNS(A) l Legal Network Series 20

[9]
The Code was conceived as a form of guidelines to employees, trade unions and
other relevant parties recommending employer based measures such as a policy
statement prohibiting sexual harassment in the organization, a clear definition of
sexual harassment, a compliant/grievance procedure, disciplinary rules and penalties
against the harasser and against those who make false accusation, protective and
remedial measures for the victim and promotional and educational program to explain
the company’s policy on sexual harassment and to raise awareness of sexual
harassment and its adverse consequences among the employees, supervisors and
managers. See Lekha Laxman, Assoc Prof Dr Hishamuddin Mohd Som, Maisarah
Mohamed Saat and Low Hock Heng, ‘A Study on Sexual Harassment i n Small and
Medium Enterprises of Malaysia’, 8.

[10]
See Tengku Dato’ Omar B Tengku Bot and Maimunah Aminuddin, A Guide to the
Malaysian Code of Practice on Sexual Harassment in the Workplace (Leeds
Publications, 2000) 19.

[11]
See for example, Jashpal Kaur Bhatt, ‘Sexual Harassment at the Workplace − Is
the Code of Practice Enough?’ paper presented and published as conference
proceedings, National Occupational Safety and Health Conference, 21 − 22 April
2003, Penang, Institute of Occupational Safety and Health Management, School of
Management, Universiti Utara Malaysia.

[12]
Section 27 EA Amendment Act 2012.

[13]
See Ponmalar N Alagappara, Sabitha Marican, ‘The Issue of Sexual Harassment
Legislation in a Mainstream Newspaper in Malaysia’, Procedia - Social and
Behavioral Sciences 155 (2014) 368 − 373, The International Conference on
Communication and Media 2014 (i-COME’14), 18-20 October 2014, Langkawi,
Malaysia, 369.

[14]
According to an Australian study, sexual harassment disproportionately affects
women with 1 in 5 experiencing sexual harassment in the workplace at some time.
However, 1 in 20 men also report experiencing sexual harassment in the workplace.
[2015] 1 LNS(A) l Legal Network Series 21

See Australian Human Rights Commission <https://www.humanrights.gov.au/our-

work/sex-discrimination/guides/sexual-harassment>.

[15]
There was a submission by a group of NGOs called the Joint Action Group against
Violence Against Women (JAG) on a draft of the Sexual Harassment Bill to the MOHR
in March, 2001. Since then JAG representatives have held several key meetings with
officials from different government agencies to discuss the draft Bill but there has
been no indication that the draft Bill may be enacted. Cited in Alagappara and
Marican, above n 14, 369.

[16]
See section 28 B − L SDA 1984 (Cth).

[17]
See Alagappara and Marican, above n 14, 369.

[18]
Bianca Fileborn, ‘Conceptual understandings and prevalence of sexual harassment
and street harassment’, Australian Centre for the Study of Sexual Assault, Resource
Sheet, July 2013, 3.

[19]
Crouch argues that viewing work-based sexual harassment as a distinct entity
serves to obfuscate the purpose of sexual harassment, which Crouch argued is ‘to keep
women in their place … a means of maintaining women’s status as subordinate in
society’ and controlling their movement and behaviour in public and other spaces. See
Fileborn, above n 18.

[20]
Deirdre McCann, ‘Sexual Harassment at Work: National and International
Responses’ Conditions of Work and Employment Series No.2, n 9, 4,
<http://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---
travail/documents/publication/wcms_travail_pub_2.pdf> 10 June 2015.

[21]
See SarvinderKaur, ‘The Necessity for a Sexual Harassment Act in Malaysia’,
(2009) IIUM Law Journal 17 (2) 271, 272.
[2015] 1 LNS(A) l Legal Network Series 22

[22]
In other provisions of the EA, there have been gender specific provisions. See for
example Parts VIII and IX of the EA which deal with the employment of women and
maternity protection.

[23]
Seen 15 above.

[24]
Section 81B (1) EA states that ‘[u]pon receipt of a complaint of sexual harassment,
an employer or any class of employers shall inquire into the complaint in a manner
prescribed by the Minister’.

[25]
Section 81B (3) EA states that ‘Notwithstanding subsection (2), an employer may
refuse to inquire into any complaint of sexual harassment as required under subsection
(1), if— (a) the complaint of sexual harassment has previously been inquired into and
no sexual harassment has been proven; or (b) the employer is of the opinion that the
complaint of sexual harassment is frivolous, vexatious or is not made in good faith’.

[26]
Section 81B (2) EA states that ‘Subject to subsection (3), where an employer
refuses to inquire into the complaint of sexual harassment as required under subsection
(1), he shall, as soon as practicable but in any case not later than thirty days after the
date of the receipt of the complaint, inform the complainant of the refusal and the
reasons for the refusal in writing’.

[27]
Section 81C EA provides that ‘Where the employer conducts an inquiry into a
complaint of sexual harassment received under subsection 81B(1) and the employer is
satisfied that sexual harassment is proven, the employer shall — (a) in the case where
the person against whom the complaint of sexual harassment is made is an employee,
take disciplinary action which may include the following: (i) dismissing the employee
without notice; (ii) downgrading the employee; or (iii) imposing any other lesser
punishment as he deems just and fit, and where the punishment of suspension without
wages is imposed, it shall not exceed a period of two weeks; and (b) in the case where
the person against whom the complaint of sexual harassment is made is a person other
than an employee, recommend that the person be brought before an appropriate
disciplinary authority to which the person is subject to’.
[2015] 1 LNS(A) l Legal Network Series 23

[28]
Section 14 EA defines a misconduct as conduct which is inconsistent with the
fulfillment of the express or implied conditions of service and whereby an employer
may after due inquiry, dismiss the employee without notice, or downgrade the
employee, or impose a lesser punishment as he deems fit. The Industrial Court has
determined that a misconduct is ‘improper behavior that violates the rules of the
organization; it should not be trifling in nature, must be intentional, and the employee
must be aware of the harm he is causing’. See Marilyn Aminuddin, Malaysian
Industrial Relations (McGraw Hill, 1990) 88, cited in V Anantaraman, Malaysian
Industrial Relations − Law & Practice (Universiti Malaysia Putra Press, 1997) 251.

[29]
See n 6, Freescale Semiconductor Malaysia Sdn Bhd v. Edwin Michael Jalleh &
Anor [2013] 4 ILR 237, [16] 244.

[30]
Under section 14 (1) EA, an employer may, on the grounds of misconduct
inconsistent with the fulfilment of the express or implied conditions of his service,
after due inquiry (a) dismiss without notice the employee; (b) downgrade the
employee; or (c) impose any other lesser punishment as he deems just and fit, and
where a punishment of suspension without wages is imposed, it shall not exceed a
period of two weeks. Similarly under section 81C (a) EA, when an employer is
satisfied that the sexual harassment has been proven, the employer shall (i) dismiss
the employee without notice, (ii) downgrade the employee and (iii) impose any lesser
punishment as he deems just and fit, and where the punishment of suspension without
pay is imposed, the suspension shall not exceed a period of two weeks.

[31]
Section 81D (1) EA states that ‘[i]f 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. (2) The employer shall inquire into the
complaint of sexual harassment when directed to do so under subsection (1) and
submit a report of the inquiry to the Director General within thirty days from the date
of such direction. (3) If a complaint of sexual harassment received by the Director
General is made against an employer who is a sole propri etor, the Director General
shall inquire into such complaint himself in a manner prescribed by the Minister. (4)
[2015] 1 LNS(A) l Legal Network Series 24

Upon inquiry by the Director General of the complaint of sexual harassment under
subsection (3), the Director General shall decide if sexual ha rassment is proven or not
and such decision shall be informed to the complainant as soon as practicable. (5)
Notwithstanding subsection (3), the Director General may refuse to inquire into any
complaint of sexual harassment received under subsection (3), i f— (a) the complaint
of sexual harassment has previously been inquired into by the Director General and
no sexual harassment has been proven; or (b) the Director General is of the opinion
that the complaint of sexual harassment is frivolous, vexatious or i s not made in good
faith. (6) Where the Director General refuses to inquire into the complaint of sexual
harassment received under subsection (3), he shall, as soon as practicable but in any
case not later than thirty days after the date of the receipt of the complaint, inform the
complainant of the refusal and the reasons for the refusal in writing’.

[32]
Fileborn, above n 19, citing Yagil, D., Karnielie-Miller, O., Eisikovits, Z., and
Enosh, ‘Is that a “no”? The interpretation of responses to unwanted sex ual attention’,
(2006) Sex Roles, 54, (3/4), 251−260.

[33]
Paul O’Halloran, Rigby Cooke Lawyers, ‘Cyber-sexual harassment at work’,
October 2012 Volume 15 No 7 Internet Law Bulletin 123
<http://www.rigbycooke.com.au/skillsEDIT/clientuploads/94/Cyber%20Sexual%20H
arassment%20at%20Work_2.pdf>.

[34]
Ibid.

[35]
Ibid.

[36]
Ibid. For example, the Australian Human Rights Commission states that sexual
harassment may include ‘sending sexually explicit emails or text messages,
inappropriate advances on social networking sites and accessing sexually explicit
internet sites’. See n 5.
[2015] 1 LNS(A) l Legal Network Series 25

[37]
[2014] 1 LNS 293. See also Malayan Banking Berhad v. Md Nor Kassim &
Mahkamah Perusahan Malaysia [2014] 1 LNS 1514, which involved sexual
harassment complaints involving inappropriate text messages or SMSes.

[38]
Dr. Muzaffar Syah Mallow, ‘Sexual Harassment in the Workplace: An Overview
over the International Law and Current Law and Practice in Malaysia’, (July 2013)
Vol 3 No 13 International Journal of Humanities and Social Science 75, 79.

[39]
Ibid, see regulation 6.1 (c) of the Circular.

[40]
The provisions of the Penal Code that can apply in respect of sexual harassment
incidents are section 354 which provides for assault or use of criminal force to a person
with intent to outrage modesty, section 355 which provides for assault or criminal
force with intent to dishonour a person, otherwise than on grave provocation, section
375 which provides for rape and section 509 which provides for word or gesture
intended to insult the modesty of a woman. See Dr Muzaffar Syah B Mallow, ‘The
Criminal Law Approach to Sexual Harassment in the Workplace, [2011] 1 MLJ cxi,
6.

[41]
[2007] 2 ILR 313.

[42]
Section 20(1) IRA states that, ‘Where a workman, irrespective of whether he is a
member of a trade union of workmen or otherwise, considers that he has been
dismissed without just cause or excuse by his employer, he may make representations
in writing to the Director General to be reinstated in his former employment’

[43]
See n 31 on section 14 EA which deals with an employer’s opt ions in respect of
an employee’s misconduct.

[44]
See Sarvinder, above n 22, 273.

[45]
See Mallow, n 41, 8.
[2015] 1 LNS(A) l Legal Network Series 26

[46]
The employer’s duty can arise under the Occupational Safety and Health Act 1994
(OSHA) (Malaysia, Act 514) and under the common law. It is noted that sexual
harassment can be considered a psychosocial hazard at the workplace, under the
Department of Occupational Safety and Health Malaysia (DOSH), Guidelines on
Occupational Safety and Health Act (Act 514) (2006), 10. For the employer’s common
law liability for sexual harassment, see Ashgar Ali Mohamed, ‘Sexual Harassment in
the Workplace: The Law and Practice in Malaysia’, [2004] 1 MLJ xlix.

[47]
See section 9 of the Code.

[48]
See Zarizana Abdul Aziz and Dr. Cecilia Ng, ‘Combating Sexual Harassment: The
Way Forward’, paper presented at the 11th Malaysian Law Conference, 8 to 10
November 2001, Kuala Lumpur, 5. A study found that 4,500 companies had adopted
the Code since its introduction but they represented only 1.125 per cent of the 400,000
employers registered with the Social Security Organisation or SOCSO/Perkeso.

[49]
Section 4 of the Code defines sexual harassment as unwanted sexual conduct of a
sexual nature which has the effect of verbal, non-verbal, visual, psychological or
physical harassment 1 and which can further be divided into two (2) categories under
section 5 as being (a) Sexual coercion which is sexual harassment which results in
some direct consequence to the victim’s employment − as seen in the superior-
subordinate situation. This form of sexual harassment is legally categorized as ‘quid
pro quo’ ie, ‘put up or get out’ type of sexual harassment. Thus, the person in authority
has the power to promote, hire, fire or cause adverse results on the employee’s job.

(b) Sexual annoyance which is sexually related conduct which is offensive, hostile or
intimidating to the recipient but has no direct link to any job benefit − as seen in co -
employee or even a customer of the employer situation. Here a ‘hostile environment’
is created where the employee may not suffer from any employment setbacks but is
made to endure offensive behaviour from co-workers or even customers or clients of
the employer.

[50]
(Award No 568 of 2013)
[2015] 1 LNS(A) l Legal Network Series 27

[51]
Ibid, [5, 6].

[52]
[2014] 1 LNS 1514

[53]
Ibid, [5]. Here the victim had lodged two police reports against the harasser.

[54]
[2006] 1 MLJ 297.

[55]
[1998] 3 CLJ 583.

[56]
See Lee, above n 4.

[57]
Seyfarth Shaw, ‘Smartphones, Social Media and Sexual Harassment: 5 Steps to
Mitigate the Risks of Hostile Work Environment Claims in the
Workplace’<http://www.laborandemploymentlawcounsel.com/2014/01/smartphones -
social-media-and-sexual-harassment-5-steps-to-mitigate-the-risks-of-hostile-work-
environment-Claims-in-the- Workplace> accessed 26/5/2015.

[58]
Ibid.

[59]
See Shobana Padmanathan, Jayadeep Hari and Jamil, Advocates and Solicitors,
‘Sexual Harassment - How Safe Are You At Work?’
<http://www.hg.org/article.asp?id=30196>

[60]
See section 6 of the Code.

[61]
See sections 15 to 18 of the Code.

[62]
See James Hand, ‘Employer’s Liability for Third-Party Harassment: An
‘Unworkable’ and Superfluous Provision?’, (2013) 42 (1) Industrial Law Journal 75.

[63]
See Sonia, R., ‘Women want stand-alone sexual harassment law to cover all’, 2014,
<http://www.theantdaily.com/news/2014/02/11/women-want-stand-alone-sexual-
harassment> cited in Alagappara and Marican, above n 14, 369.
 [2015] 1 LNS(A) l Legal Network Series 28

[64]
Section 81B (3) EA provides that an employer may refuse to investigate a
complaint of sexual harassment if: (a) the complaint of sexual harassment has
previously been inquired into and no sexual harassment has been proven; or (b) the
employer is of the opinion that the complaint of sexual harassment is frivolous,
vexatious or is not made in good faith. Note, the employer shall inform the employee
of the refusal within 30 days of receiving the complaint. See section 81B(2) EA.

[65]
Section 81B (4) EA.

[66]
See section 81B (5) EA.

[67]
See section 69(1) to (3) EA .

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