The primary purpose of this article is to provide basic awareness to employers and employees in private sectors in respect of this area of the law under Part XVA EMPLOYMENT ACT 1955 (‘EA Act’) in light of the recent complaints of sexual harassment at a hospital in Klang Valley.
While it is reported that there are sufficient legal regimes under the Penal Code and the relevant Public Services Department’s circular (Garis Panduan Mengendalikan Gangguan Seksual Di Tempat Kerja Dalam Perkhidmatan Awam) in place to deal with such complaints, a minister concerned has rightly pointed it out that, ‘In this particular case, it is about who covered up’.
It must be applauded that Part XVA of the EA Act is the first piece of legislation to devise self-help legal procedures in dealing with sexual harassment, albeit in private employment in Malaysia.
1. Definition of ‘Sexual Harassment’
Sexual harassment is defined under section 2 of the EA Act 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.’
Section 81G of the EA Act states that these provisions on sexual harassment in Part XVA of the EA Act are applicable to all employers or employees in the private sector.
3. Self-Help Legal Procedures for Victims
The law imposes several duties to act on the employers upon receiving a complaint of sexual harassment. These are the salient points to note that should any male or female, employees or employers were to make such complaint at the workplace:-
Complain to Employer
- On receiving a complaint of sexual harassment by an employee against another employee, or by an employee against any employer, or by an employer against an employee, the employer shall inquire into the complaint. Many corporations now have a Sexual Harassment Policy in dealing with such situations.
- The employer may, however, refuse to inquire further into the complaint in writing by giving reasons for the refusal within 30 days of the complaint. Such reasons might be that the employer is of the opinion that the complaint of sexual harassment is frivolous, vexatious or is not made in good faith.
- Should the complainant be dissatisfied with the refusal of the employer to inquire into his/her complaint, he/she may refer the matter to the Director General of Labour (‘DGL’) (Official website at http://jtksm.mohr.gov.my/index.php/en) who may then direct the employer to conduct an inquiry if he/she thinks that the matter should be pursued.
- Otherwise, if the DGL agrees with the employer’s decision not to conduct the inquiry, he/she will inform the complainant that no further action will be taken.
- Where the employer conducts an inquiry into a complaint of sexual harassment and the employer is satisfied that sexual harassment is proven, the employer shall:-
(a) in the case where the person against whom the complaint of sexual harassment is made is an employee, take disciplinary action which may include
(i) dismissing the employee without notice;
(ii) downgrading the employee; or
(iii) imposing any other lesser punishment as the employer deems just and fit, and where the punishment of suspension without wages is imposed, it shall not exceed a period of 2 weeks; and
(b) in the case where the person against whom the complaint of sexual harassment is made is a person other than an employee, recommend that the person be brought before an appropriate disciplinary authority to which the person is subject to.
Complain to Director General of Labour (‘DGL’)
- Alternatively, a complainant of sexual harassment may lodge a complaint directly to the DGL and the DGL shall assess the complaint and may direct an employer to inquire into such complaint within 30 days from the date of such direction unless a complaint of sexual harassment received by the DGL is made against an employer who is a sole proprietor, the DGL shall then inquire into such complaint him/herself.
- Likewise, should the inquiry is to be conducted by the DGL him/herself, he/she shall decide if sexual harassment is proven or not and such decision shall be informed to the complainant as soon as practicable.
- The DGL may also refuse to inquire further into any complaint of sexual harassment received should the complaint of sexual harassment has previously been inquired into by him/her and no sexual harassment has been proven, or he/she is of the opinion that the complaint of sexual harassment is frivolous, vexatious or is not made in good faith and such refusal shall be informed to the complainant within 30 days in writing.
- Where the DGL conducts an inquiry into a complaint of sexual harassment and is satisfied that sexual harassment is proven, the complainant may terminate his/her contract or service without notice and yet shall be entitled to wages as if the complainant has given the notice of the termination of contract of service and such termination benefits and indemnity as provided for under the Act or the contract of service, as the case may be.
- Punishment for the employer who fails to comply with Part XVA of the EA Act
An employer is liable to a fine not exceeding RM10,000 if he/she fails:-
(a) to conduct an inquiry into a complaint of sexual harassment;
(b) to inform the complainant why he refuses to conduct an inquiry;
(c) to conduct any inquiry when directed to do so by the Director General of Labour; or
(d) to submit a report of inquiry when directed to do so by the Director General of Labour.
As responsible employers in providing a safe and conducive working environment, all employees should be made aware that sexual harassment in any form constitutes misconduct and is prohibited and shall not be tolerated or condoned by anyone in the organization. This is in line with the purpose of the legislation intended to ensure that all employees are free from sexual harassment at the workplace.
It is further encouraged that all employers should make clear that such sexual harassment in the workplace shall include any employment-related sexual harassment accruing outside the workplace as a result of employment responsibilities or employment relationship, such as emanating out of work-related social functions, conference or training sessions, travel and work assignments outside the workplace or even over the telephone or electric media.
About the Author
Feel free to contact him if you have any further queries.