Research suggests that a significant percentage of employed women, ranging from 35% to 53%, have encountered various types of sexual harassment in the workplace. Based on a survey conducted in 2020, 62% of women in Malaysia have encountered sexual harassment in the workplace, with the figures showing an alarming increase.
The Employment Act 1955 provides a definition of sexual harassment in Section 2, stating that it encompasses any unwelcome behaviour of a sexual nature, whether it is verbal, nonverbal, visual, gestural, or physical, directed at an individual that is offensive, humiliating, or poses a threat to their well-being (depression - anxiety - decreased self-confidence - insomnia - sexual dysfunction) occurring within the context of their employment. Three primary components must be present to prove sexual harassment: i) the presence of sexually oriented behaviour; ii) the behaviour being unwelcome; and iii) the behaviour being perceived as jeopardizing the victim's job performance, aligning with the established definition. (Mohd Ridzwan Abdul Razak v. Asmah Hj Mohd Nor).
It is important to highlight that despite the existence of laws, incidents of sexual harassment persist in work environments. This is primarily due to the reluctance of victims to report such misconduct out of fear of repercussions such as social exclusion or job loss. Moreover, the amendment to the Employment Act of 2022 mandates that employers must take proactive measures to prevent sexual harassment by displaying awareness notices in the workplace. Failure to comply could result in fines of up to RM50,000 for the employer. Additionally, the Public Services Commission introduced a list of disciplinary offenses related to sexual harassment in 2023, where even terms of endearment like "sayang" when addressing a colleague are now considered as forms of sexual harassment in the workplace.
Despite efforts to address sexual harassment through laws and amendments, there are still gaps in the legal system. One major issue is that victims may only receive monetary compensation, which might not effectively deter such behaviour. Reliance on monetary compensation as the primary form of redress for victims may not effectively deter perpetrators who can afford to pay. This approach is criticized for not being survivor-focused, as many victims seek more than just financial restitution.
Recent changes have mandated employers to take more preventive measures, outlined specific disciplinary actions for sexual harassment, and introduced the Anti-Sexual Harassment Act 2022 to offer recourse for victims. This Act aims to offer a means of redress for individuals who have experienced sexual harassment and additionally set up a Tribunal for Anti-Sexual Harassment to address complaints related to sexual harassment. The procedures followed by the Tribunal in handling these cases are distinct from those followed by employers when handling such cases internally, as employers typically initiate disciplinary proceedings during their internal investigations. (Lim Po Seng v Resort Villa Gold Course Berhad (Award No. 471 of 2023). The court here had stated that an employee who was dismissed due to a sexual harassment complaint was unfairly dismissed due to insufficient evidence.
1. SEXUAL HARASSMENT VICTIM’S SUMMARY OF RECOURSE AT THE WORKPLACE
A.COMPLAINT TO THE EMPLOYER (SECTION 81B)
o If filed under Section 81B – employer must inquire into the complaint and may either take disciplinary action upon investigation or bring it up with an appropriate disciplinary authority.
B.COMPLAINT TO THE DIRECTOR GENERAL OF LABOUR (DG) (SECTION 81D)
o However, if the employer refuse to act, the victim may refer the matter to the Director General of Labour (DG).
o DG can direct the employer to commence an inquiry. Failure to comply with this direction is an offence for which the employer may be liable to a fine not exceeding RM10,000.00.
The Employment Act 1955 has been amended, and the changes implemented on January 1, 2023, indicates employers are now required to take extra measures to prevent sexual harassment by prominently displaying a notice to raise awareness of the issue. The fine for non-compliance has been increased to fifty thousand ringgit (RM50,000.00).
2. MAKE A POLICE REPORT
The submission of a police report can initiate a police inquiry that could result in criminal charges being filed against the offender under sections 354 or 509 of the Penal Code. Additionally, the police report may serve as evidence to support the plaintiff's claim in a civil lawsuit. The Investigation Officer (Police) may be summoned as a witness by the Plaintiff in a civil proceeding to corroborate the investigation findings.
3. FILE A CIVIL SUIT AGAINST THE PEPETRATOR
The victim of sexual harassment in Malaysia can take legal action against the perpetrator by filing a civil case, in addition to any disciplinary measures taken by the employer. It is crucial for the victim to gather material evidence such as WhatsApp messages, recordings of conversations, witness statements, and medical reports to support their claim. The findings of a domestic inquiry or internal investigation can also be used as evidence in court.