In recent weeks, we have read news about allegations of sexual harassment involving a former employee of a renowned NGO by her then supervisor. The former employee had described in detail about how her then supervisor made inappropriate remarks and advances to her. After which, more allegations were made by former employees of the renowned NGO pertaining to occurrences of sexual harassment while they were at work.
This evening, one of my friends who is a Dato’ informed me that there were allegations made to one of his foreign male workers who had allegedly committed sexual harassment to one of his female staff. My friend took immediate action after conducting an investigation and consequently the foreign male worker was terminated and sent back to his home country. This example should be emulated and I salute him for having zero-tolerance for unlawful harassment and inappropriate sexual conduct in the workplace.
While there is no Sexual Harassment Act per se in Malaysia at the moment, there are legislation and guidelines such as the Penal Code Act 574, Employment Act 1955, the Code Of Practice On The Prevention And Eradication Of Sexual Harassment In The Workplace and most recently, the Federal Court decision which assist the victims in their legal recourse.
Section 509 of the Malaysia Penal Code provides that:-
(Quote: Section 509 Penal Code Act 574):-
“Whoever, intending to insult the modesty of any person, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen by such person, or intrudes open the privacy of such person, shall be punished with imprisonment for a term which may extend to five years or with fine, or with both.”
Section 2 of the Employment Act 1955 defines sexual harassment as:-
“¯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;”
The Code Of Practice On The Prevention And Eradication Of Sexual Harassment In The Workplace prepared by the Malaysian Ministry of Human Resources, defined sexual harassment in Article 4 as:
Any unwanted conduct of a sexual nature having the effect of verbal, non-verbal, visual, psychological or physical harassment:
- that might, on reasonable grounds, be perceived by the recipient as placing a condition of a sexual nature on her/his employment; or
- 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 her/his employment”
Further, section 81F of the Employment Act 1955 imposes a mandatory obligation for employers to investigate any complaints of sexual harassment:-
81F. Any employer who fails—
(a) to inquire into complaints of sexual harassment under subsection 81B(1);
(b) to inform the complainant of the refusal and the reasons for the refusal as required under subsection 81B(2);
(c) to inquire into complaints of sexual harassment when directed to do so by the Director General under paragraph 81B(5)(a) or subsection 81D(2); or
(d) to submit a report of inquiry into sexual harassment to the Director General under subsection 81D(2);
commits an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit.
Thus, we can conclude that as and when a female employee has lodged an official complaint to her employer that she has been unlawfully harassed by her male co-worker, the employer is required by the Employment Act 1955 to investigate the allegation. Once the employer is satisfied that the act of sexual harassment is proven, the employer may take disciplinary actions against the perpetrator which may include dismissal, downgrading or suspension.
However, there is nothing in the Employment Act 1955 which defines the criminal liability of the perpetrator.
In 2016, the Federal Court established the tort of sexual harassment and had sent a strong message about dealing with sexual harassment in the workplace allowing victims to claim for civil remedies against the perpetrator.
As Malaysia’s population has grown, from 27.9 million in 2009 to 32 million in 2018, there is a considerable amount of female participation in the workforce. The Labour Force Survey Report Malaysia 2016 conducted by the Department of Statistics Malaysia reported that the female labour force participation rate rose 0.2 percentage points to 54.3%. We can only imagine that there will be a yearly rise in female participation in the workforce. In view of this, it is imperative that they should be free from sexual harassment in the workplace. We need an Act of Parliament to oversee sexual harassment in the workplace. It is a basic human right that every living person has to be respected with integrity and no one can ever violate another person’s modesty.
The Sarawak Community Policing Association which advocates for peace and safety in the community condemnsany acts of sexual harassment in the workplace. It is immoral and unethical to use one’s position to gain advantage of another.
In light of the above, we call upon the said NGO, to conduct a thorough investigation on their former staffs’ allegations of sexual harassment.
We also urge the relevant authorities to urgently implement an act of parliament specifically to Sexual Harassment to punish offenders and to protect the victims. At the end of the day, the most effective weapon against sexual harassment is prevention.
Datuk Lau Pang Heng
Sarawak Community Policing Association