In this Case Update series, I share summaries of recent Malaysian court decisions to explore the current approach taken by the courts when deciding on employment-related issues. You can find all the posts in the series by clicking here, including case updates on other legal areas by TheMalaysianLawyer co-founder Lee Shih.

Sexual harassment in the workplace is a topic that has recently attracted a lot of attention and discussion. While most Malaysian employers have been relatively slow to respond, we have seen an increased focus in the past year from businesses and employers seeking to understand the often complex issues relating to workplace sexual harassment. There continues to be a noticeable increase in momentum of employers putting in place anti-harassment policies and processes, learning how to handle sexual harassment complaints, and ensuring that employees attend external and internal education and training sessions.

As I pointed out in my 2022 employment law forecast (See: “Employment law: 2021 review and 2022 forecast”), this focus on addressing workplace sexual harassment is expected to intensify in 2022, particularly with the increasing public discourse, and in view of Malaysia’s first specific sexual harassment legislation expected to be passed in the first half of the year (See: “Malaysia’s Anti-Sexual Harassment Bill tabled in Parliament”). In November 2021, the government shared that 775 sexual harassment cases had been reported and investigated by police — it’s clear that this is only the tip of the iceberg, and we will see more cases surfacing as awareness and education continues.

While the Anti-Sexual Harassment Act and the “Tribunal for Anti-Sexual Harassment” will provide a new specific avenue for sexual harassment complaints, in the context of the workplace, there has already been some recourse for employee-victims, and scope for employers to take action. Sexual harassment is a workplace misconduct punishable by termination, and victims of sexual harassment who can show that an employer had not properly handled a complaint could potentially claim to have been constructively dismissed (See: “Case Update: Employer’s poor handling of workplace assault and harassment complaints amounts to constructive dismissal” for one example). Of course, as already mentioned, as there has only recently been proper awareness and education in relation to workplace sexual harassment, over the years too many employee-victims have suffered in silence.

With the increase in sexual harassment complaints in recent years, the Industrial Court has had the opportunity to refine and clarify its approach in handling such cases. Sexual harassment can be very complex, as there are many types of sexual harassment. Evidence can also be controversial, as many instances of sexual harassment take place in private, without witnesses. To review the current position of the Industrial Court when it comes to adjudicating sexual harassment complaints, we will look at the recent case of AH v. Cagamas Berhad [2021] 4 ILR 284. This case update will cover the following topics:

  1. How the law defines sexual harassment.
  2. The burden of proof in sexual harassment misconduct.
  3. Are witnesses or corroboration necessary for sexual harassment cases?
  4. Does a delay in making a sexual harassment complaint render the claim invalid?
  5. Is “it was just a joke” a valid defence?
  6. Examples of what constitutes sexual harassment.

Brief facts

The claimant in the Cagamas case (“Claimant”) was dismissed by the Company after a domestic inquiry had found him guilty of the majority of 74 charges covering among others, misconduct, insubordination and sexual harassment. The Company had found the Claimant guilty of 39 out of 48 charges of sexual harassment, in various forms. The Claimant claimed his dismissal was without just cause or excuse.

We will not go into the full facts of the Cagamas case, but will focus instead on the findings of the Industrial Court relevant to sexual harassment complaints. Note that the references to “COW” are to the individual Company witnesses / employees, and I have maintained the individual numbering of the individuals used by the court in this summary.

How the law defines sexual harassment

The Employment Act defines sexual harassment as “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 current draft Bill of the proposed Anti-Sexual Harassment Act similarly defines sexual harassment as “any unwanted conduct of a sexual nature, in any form, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is reasonably offensive or humiliating or is a threat to his well-being”.

The Industrial Court in Cagamas referred to The Code of Practice On The Prevention And Eradication Of Sexual Harassment In The Workplace issued by the Ministry of Human Resources, which divides sexual harassment into two categories:

  1. Sexual coercion: Sexual harassment that results in some direct consequence to the victim’s employment.
  2. Sexual annoyance: Sexually related conduct that is offensive, hostile or intimidating to the recipient, which creates a bothersome working environment which the recipient has to tolerate in order to continue working.

The court also cited the previous Industrial Court case of Vasuthevan Athaly v. Freescale Semiconductor (M) Sdn Bhd [2013] 1 ILR 73, where the court quoted Ashgar Ali’s book “Dismissal from Employment and the Remedies” (Lexis Nexis, 2007), which stated: “Sexual harassment refers to sexual conduct which is imposed on, and is unsolicited or unreciprocated by the recipient, for example, repeated unwelcome sexual comments, looks or physical contact, among others.” The court in Vasuthevan Athaly further quoted Ashgar Ali, based on the earlier mentioned Code of Practice On The Prevention And Eradication Of Sexual Harassment In The Workplace, in expanding on the following six types of sexual harassment:

  1. Verbal harassment: Making sexually suggestive comments such as jokes, jesting, kidding, sounds and questioning, for example, subjecting a female worker to sexually suggestive comments.
  2. Non-verbal/gestural harassment: Sexually suggestive gestures such as leering or ogling with suggestive overtones, licking lips or holding or eating food provocatively, hand signal or sign language denoting sexual activity, persistent flirting.
  3. Written harassment: Includes printed material for example, showing pornographic materials, drawing sex-based sketches or writing sex-based letters. The mode of sending the printed material would include faxing, short message service (SMS), multimedia message service (MMS) and electronic mail (e-mail).
  4. Visual harassment: This could be something which is not directed to any particular person but which, nevertheless, creates a hostile or humiliating environment for others, for example, displaying obscene pictures. This has the potential effect of degrading or offending a female worker.
  5. Psychological harassment: Examples would be repeated unwanted social invitations; relentless proposals for dates or physical intimacy.
  6. Physical harassment: This may include unwanted physical contact for example, inappropriate touching, patting, pinching, stroking, brushing up against the body, hugging, kissing and fondling, among others. A clear example would be physically molesting a female worker by pulling her hand and inappropriately touching parts of her body.

The Company in Cagamas also had a Code of Conduct and Business Ethics which clearly stated that “the act of sexual harassment, unsolicited and unwarranted sexual overtures and advances will be treated as misconduct” and defined sexual harassment as “any unwelcomed conduct of sexual nature in the form of verbal, non-verbal, visual, psychological or physical harassment: that might, or on reasonable grounds, be perceived by the recipient as placing a condition of a sexual nature on his/her 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 his/her employment.”

Burden of proof

In an unfair dismissal claim, the burden of proof lies on the employer to prove on a balance of probabilities that the employee had committed the alleged misconduct and that the employer had just cause and excuse for dismissing the employee.

It is important to note that when it comes to misconduct cases, the misconduct does not need to amount to criminal conduct to justify dismissal, as mistakes have been made by courts in the past — see “Case Update: Federal Court decides whether punishable misconduct in employment law is distinguishable from criminal conduct” where I wrote about Akira Sales & Services (M) Sdn Bhd v Nadiah Zee binti Abdullah and Another Appeal (Federal Court Civil Appeal Nos. 01-15-05/2016 and 01-16-05/2016), which went all the way to the Federal Court. In Akira, the Industrial Court and Court of Appeal wrongly effectively held that misconduct in employment must amount to criminal conduct to justify dismissal. The Federal Court corrected this by concluding that misconduct in the context of employment need not amount to a crime to justify dismissal, and the key question was whether it was reasonable for the employer to dismiss the employee, taking into account all the circumstances at the time — or whether the dismissal was reasonable in the circumstances.

Are witnesses or corroboration necessary for sexual harassment cases?

It is very common with sexual harassment complaints that a complainant is unable to provide witnesses or corroborative evidence to support his/her claims. This is especially so as many such incidents occur in private, or in settings where the alleged perpetrator and the complainant/victim are alone. Many complaints come down to a “he said she said” situation, where it is one person’s word against the other’s. This was again the case with several of the allegations in Cagamas, where the Claimant’s defence was that nobody else witnessed the incidents alleged by some of the complainants/victims.

The Industrial Court made it clear that the fact that there were no witnesses is not a valid defence, “as it is trite law that the absence of a corroboration does not defeat a complainant’s allegation of sexual harassment”. The court cited the Federal Court case of Mohd Ridzwan Abdul Razak v. Asmah Hj Mohd Nor [2016] 6 CLJ 346:

  • In Mohd Ridzwan, the Federal Court considered the appellant’s contention that corroboration is required as a matter of practice for evidence in sexual harassment claims. The Federal Court reiterated that “the standard of proof in civil cases has traditionally been on a balance of probabilities, a standard that is certainly lower than that of criminal cases” and that the court is “constantly wary and alert of vindictive complaints and the debilitating effect such complaints has on a person, the family and the alleged perpetrator’s social standing once they are made”.
  • The Federal Court held that a suggestion that corroborative evidence was needed to establish the tort of sexual harassment “has missed the point that a harassed person […] does not file a complaint for the pleasure of it” and that complainants “suffer potential censure”. Additionally, complainants who are unsuccessful or not believed will be exposed to “public ostracisation” and “great anxiety and discomfort at the workplace”.
  • The Federal Court pointed out that demanding corroboration “will cause the harassed person to be, more often than not helpless” because the evidence will usually be the words of the harasser against the words of the victim, “and much of such leery harassment invariably takes place in private”.
  • In conclusion, the Federal Court held that “there is no hard and fast rule that in a tort of sexual harassment case there must be corroboration” — instead, the court would be expected to carefully scrutinise the evidence presented and arrive at a decision based on the facts adduced.

Does a delay in making a sexual harassment complaint render the claim invalid?

Another common element of sexual harassment cases is that the complaints are often only made long after the alleged incidents had taken place. In some high-profile sexual harassment cases around the world, complainants have even taken decades to bring legal action. The Industrial Court in Cagamas highlighted another section from Ashgar Ali’s book “Dismissal from Employment and the Remedies” (Lexis Nexis, 2007) where the author observed: “Sometimes there is also a delay in reporting, as in cases where the complainant only plucks up the courage to come forward and report after seeing another colleague filing such a complaint.”

In Cagamas, the Claimant pointed out that many of the complainants remained silent and did not lodge reports until years later and the fact that the complainants did not make any earlier reports to the management of the Company was inconsistent with the allegation that the sexual harassment did take place. However, the Industrial Court observed that “in cases of sexual harassment, silence or passivity does not necessarily mean acquiescence” and that often “the victim would remain silent hoping to weather the storm, until they could not tolerate any further”.

The Industrial Court also pointed out that in Cagamas, the victims kept silent until a senior employee rallied them, gathered evidence, “and gave them enough courage to speak up and report to the Company the torment they had been put through by the Claimant all these years”.

The Industrial Court also quoted from “Sexual Harassment At Work” by Alok Bhasin, where the author pointed out that many victims have a real fear of the consequences of a complaint and therefore passive tolerance must not be confused with voluntary acceptance of propositions made to them.

Is “it was just a joke” a valid defence?

One of the allegations against the Claimant was that, in the presence of other colleagues, after COW13 had returned from meeting the CEO, the Claimant asked COW13 — “Did CEO chit-chat with you?”, “Did he ask you to go out for lunch?”, “Did he kiss you?”. The Claimant’s contention was that he was only joking, and he relied on the testimonies of the other colleagues who were present that his remarks were said in jest.

The Industrial Court held that “in cases involving sexual harassment, the motive of the perpetrator is irrelevant” and the crucial factor is “the effect of the conduct of the perpetrator on the victim”. COW testified that she found the questions “totally offensive and humiliating” and the Industrial Court concluded that the questions “gives the impression that COW13 was having an intimate or scandalous relationship with the CEO” and therefore amounted to verbal sexual harassment, and a serious act of misconduct.

Examples of what constitutes sexual harassment

I mentioned above that there are six types of sexual harassment, and the Cagamas case involved four of them, which I summarise very briefly here to serve as examples:

Verbal harassment

  • The Claimant asked COW14 inappropriate enquiries of an intimate or personal nature with sexual connotations to the effect that “Ada boyfriend tak?”; “Pernah kiss your boyfriend tak?”; “Macam mana rasa kiss you?”; “Are you a virgin?”; “Best tak main?”; “Best tak kiss?”; “Pernah main tak?”; “Sedap, best tak?”; “Have you slept with your boyfriend?”. When these questions were asked, COW14 would try to ignore or change the subject or give reasons to leave. One time, the Claimant described his sexual experiences and COW14 said she just listened because she was scared of offending him.
  • At several work dinners, the Claimant asked COW13, who was his subordinate, why she broke up with her boyfriend and “Can I become your boyfriend or not?”. The court concluded that asking the same question on three separate occasions “had struck fear in her that the Claimant was making his advances to become her boyfriend” and the Claimant “had no business of repeatedly asking a personal question which was not related to work”.
  • During a work discussion with COW13, the Claimant pointed his finger at his cheek and said “Nanti I ask you to kiss me then, you tahu” and while touching his leg said “Come and sit on my leg”.
  • When COW13 handed the Claimant a document for his signature, he said “Don’t want. You kiss me or sit on my leg”.
  • The Claimant asked COW13 “Sayang, can I call you Sayang?; and “Can I call you Sayang?”. (The Industrial Court in Loganathan Maniam v Murphy Sarawak Oil Co Ltd [2020] 2 ILR 275 previously deemed calling a colleague or subordinate “sayang” a form of sexual harassment.)
  • During a conversation with COW11, when COW11 made reference to a male friend of hers, the Claimant asked whether COW11 had previously had sex with him.
  • The Claimant asked COW14 “Can I kiss you?” and said “I just want to try and see how is it to kiss you”.

Non-verbal/gestural harassment

  • On numerous occasions when COW14 went to the Claimant’s office for work matters, the Claimant asked her for a kiss by puckering up his mouth and making kissing sounds/gestures.
  • During an overseas business trip, the Claimant insisted that COW14 come to his room to iron his clothes, and while she did so he rested on his bed. During the same trip, the Claimant insisted on and entered COW14’s hotel room despite her repeated rejections, saying that they could have a work discussion. The Claimant then had a nap on her bed for 15-25 minutes, and subsequently woke up and left the room. Although COW14 agreed that nothing untoward happened, she was scared and worried and perceived that he had a sexual intention. The Industrial Court held that the Claimant’s conduct was both a non-verbal/gestural harassment and also a psychological sexual harassment.
  • During an overseas business trip, the Claimant and COW13 were staying in separate hotels. The Claimant insisted on following COW13 to her hotel to check that it was a good hotel, despite COW13’s numerous rejections. The Claimant followed COW13 to the train station, but gave up after more resistance from COW13. The court found that the Claimant’s conduct amounted to a non-verbal/gestural harassment and also a psychological sexual harassment.
  • When COW12 was standing behind the Claimant as they both read a document on a computer, the Claimant intentionally leaned back towards COW12, who had to respond by moving away to avoid the Claimant touching her breasts. The court concluded that this conduct amounted to a non-verbal/gestural harassment and also a psychological sexual harassment.

Psychological harassment

  • The Claimant coerced COW14 to accompany him for social drinks, failing which he would nit-pick COW14’s work/performance and accuse her of being ungrateful, and on another occasion coerced COW14 to accompany him for drinks at a hotel bar. The Claimant said that going out for social drinks was a normal and accepted practice, and COW14 did not reject the invitations. The Industrial Court disagreed, and found that “repeated unwanted social invitations by a superior to his subordinate employee amounts to psychological sexual harassment” — particularly as in this case, COW14 testified that the invitations were unwelcome, made her feel uncomfortable, and she only went along because she feared the Claimant’s retaliation.

Physical harassment

  • The Claimant used his finger to scratch COW13’s palm when shaking her hand. The Claimant’s counsel suggested to COW13 that the act was meant to be a joke. The court held that “the act of tickling the palm of another person during a handshake amounts to a physical harassment with the sexual connotation or invitation to have a sexual relationship”.
  • The Claimant moved his leg and rested his foot against COW14’s left ankle while COW14 was seated opposite him. Several other times, the Claimant moved his foot under the table and touched or rubbed COW14’s foot/leg while she was seated opposite him at various locations in the office.
  • While the Claimant and COW12 were seated at COW12’s workstation, the Claimant took COW12’s right hand and placed it on his private parts.
  • The Claimant placed his right hand on COW13’s right hand, which was on a computer mouse.
  • On approximately 10 instances, the Claimant pinched COW14’s back and side, at her bra line, close to her breast.
  • The Claimant stood behind COW13 and suddenly pinched and twisted her bra strap together with her flesh on the right hand side of her back, and then again pinched and twisted her bra strap together with her flesh on the left had side of her back.
  • On numerous occasions, the Claimant touched/felt COW14’s hand when COW14 handed items (a pen, lighter) to him.
  • On three occasions, the Claimant touched/felt COW12’s hand when COW12 handed documents to him.
  • On two occasions, the Claimant touched/felt COW13’s hand when she handed items to him. On one occasion, the Claimant touched both COW13’s hands, supposedly to help her open a box.
  • On two occasions, the Claimant touched/felt COW11’s hand when she handed items to him.
  • On several occasions, the Claimant forcefully held, grabbed/pulled, and kissed COW14’s hand while driving her home.
  • The Claimant forcefully pulled COW14’s hand, pushed himself towards her, kissed her on her lips, and stuck his tongue in her mouth. After COW14 pulled away, the Claimant asked: “Cuba sekali lagi boleh tak?”

Conclusion

The Cagamas case obviously involved an unusually long list of acts of misconduct, and the Claimant in that case was (in the words of the Industrial Court) “a compulsive sexual harasser”. Because of this, the weight given by the court to each allegation in Cagamas would be different to another case where there may only one allegation from one individual. The court in Cagamas admitted to this, emphasising the consideration given to “the overwhelming evidence of sexual harassment committed by [the Claimant] on various female staff” and that “the act of misconduct by the claimant on the complainants was not one isolated incident, but rather a long series of misconducts of workplace and sexual harassment”.

However, analysing the Industrial Court’s findings in Cagamas would still be very useful for employers and HR professionals in understanding the various types of sexual harassment, and in planning their own internal policies and procedures, particularly in assessing complaints and evidence and conducting internal investigations.

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