These are the material changes in the updated version of the Bill:
A new Clause 7(3) is included, introducing a limitation period for sexual harassment complaints: “A complaint referred to the Tribunal under this Act is subject to the Limitation Act 1953.”
While the original version provided that parties at the hearing of a sexual harassment complaint cannot be represented by an advocate and solicitor, this has been revised [at Clause 13(2)] to provide that legal representation will be allowed if “in the opinion of the Tribunal, the matter in question involves complex issues of law”. The revisions also provide that if one party is allowed to represented by an advocate and solicitor, then the other party will also be so entitled.
With these very limited changes, it appears that the concerns raised by numerous rights organisations who had hoped for “a meticulous review of the Bill” have been left unheard. Time will tell whether the new long-awaited law will be comprehensive enough to protect the rights and wellbeing of sexual harassment victims.
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.
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.
Most employers are now aware of the importance of having clear policies and processes when it comes to handling complaints and disciplinary issues. It’s the norm for businesses hiring a reasonable number of employees to have in place various codes of conduct, guidelines, and policies.
Despite this, an employer that receives an employee complaint and acts on it could still be at risk of being deemed to have breached the terms and conditions of employment, or severed the employment relationship, due to shortcomings in how the complaint was handled.
The Industrial Court recently considered these issues in Justin Maurice Read v. Petroliam Nasional Berhad (Petronas) (Award No. 965 of 2017). In this case, the claimant (the Employee) had complained of being assaulted and harassed in the workplace. The Employee then claimed that the manner in which these complaints were handled by the company (the Employer) entitled him to claim to have been constructively dismissed.