Case Update: A guide to how the Industrial Court assesses sexual harassment complaints

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.

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Employment law: 2021 review and 2022 forecast

I am kicking off 2022 by looking back for a quick recap of the 2021 Malaysian employment law and industrial relations highlights, and a brief outline of what I expect to be the key developments in the coming year.

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Malaysia’s Anti-Sexual Harassment Bill tabled in Parliament

The Anti-Sexual Harassment Bill 2021 (“the Bill”) was tabled for its first reading in the Dewan Rakyat earlier today.

Addressing the media, Deputy Women, Family and Community Development Minister Datuk Siti Zailah Mohd Yusoff said that the Bill was drafted by a special project team consisting of representatives from government agencies, academicians, NGOs, as well as following consultation with several other stakeholders. According to Siti Zailah, the Bill will lay the foundations for structural reforms which seeks to “address legal gaps and improve the existing justice system”.

Last month, Siti Zailah shared that 775 sexual harassment cases had been reported so far in 2021, and that those cases were being handled through other laws such as the Penal Code, Employment Act, Communications and Multimedia Act, and the Sexual Offences Against Children Act.

This article sets out the key provisions of the current draft of the Bill.

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