What is sexual harassment @ gangguan seksual?
sec 2 Employment Act 1955 :
“sexual harassment means any unwanted conduct of 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.”
(sebarang perlakuan yang tidak diinginkan yang bersifat seksual, sama ada lisan, bukan lisan, visual, isyarat atau fizikal, ditujukan kepada seseorang dimana ianya menyinggung perasaan atau memalukan atau mengancam kesejahteraannya, yang timbul dari dan semasa dia bekerja.)
What are the types of sexual harassment?
- Verbal harassment – remarks, comments, questions, sounds that are sexual in nature e.g darling, babe, dear, honey, sweetheart.
- Non-verbal (gestures) harassment – sexually suggestive gestures, e.g leering or ogling with suggestive overtones, licking lips, holding/eating food provocatively, flirting, sticking tongue in lewd suggestive manner
- Visual harassment – sexual jokes, suggestive pictures, exposing private parts.
- Psychological harassment – repeated unwanted social invitations, relentless request for dates, repeated requests for physical intimacy.
- Physical harassment – unwanted physical contact, touch, stroking, patting, brushing against the body, hugging, kissing, sexual assault, inappropriate touches.
“workplace”?
Refers to context, not location. ‘Workplace’ is not confined to work premises or during working hours but includes harassment outside working time or premises, as long as it arose out of work relations and within workscope. E.g
- During social events connected with work
- When working outstation
- During work training or course
- Whilst travelling for work, in a vehicle
- Vide electronic communications or social media.
Sexual harassment:
- The act must be imposed on, unsolicited or unreciprocated by the victim.
- Victims may be co-workers, subordinates, customers
- Gender is immaterial – harasser can be a female/male.
- Sexual harassment is characterized by the power imbalance between the individuals involved;
- it is always based on the perception of the recipient and not on the intent of the harasser i.e whether an objectively reasonable person looking at the circumstances of the victim would consider that act as an unlawful conduct of sexual nature.
Examples:
- Mohd Nasir Deraman v Sistem Televisyen Malaysia Bhd [2010] 2 LNS 0480
Sexual harassment exists despite ‘consent’. Co-workers travelling in a car. Three male workers, victim most junior female employee, co-worker feeling tired, told victim he wanted to sleep, she said “tidurlah”. He slept on her lap. Court held there was sexual harassment as the ‘consent’ cannot be voluntary, victim being the most junior and only female would have felt constrained to agree to his request.
- Loganathan Maniam v Murphy Sarawak Oil [2020] 2 ILR 275
Using terms of endearment “sayang” , buying flowers on Valentine’s Day, gifts personal in nature e.g perfume is unacceptable – shows the giver’s intention to be personal – sexual harassment.
- Muhammad Fadzli Adnan v. Seri Pacific Hotel [2019] 2 LNS 1161
Personal conduct that did not involve others can also be sexual harassment. Claimant in the presence of female employees, loosened belt, opened trouser zip, lowered pants for the purpose of re-tucking his shirt. Held as indecent conduct, sexual in nature.
- Ahmad Zailani Junoh v. Alam Flora Sdn Bhd [2008] 2 LNS 0104
Sexually suggestive statements though did not ‘invite’ recipient but refers to recipient’s conduct with others also a sexual harassment. Victim asked for urgent signature in a form, claimant’s reply: “kalau mahu malam ini dengan suami awak, malam ini juga suami awak bagi ke?”. Court held this was unacceptable, and sexual harassment.
- Fuchs Petrolube (M) Sdn Bhd v. Chan Puck Lin [2003] 3 ILR
Being cheeky and making “silly jokes” – persistently calling for lunch, sending card with words e.g ‘darling’ and saying ‘love you’ – also sexual harassment.
What victims should do?
Object to the wrongful act. Show that the act was unwanted/unwelcomed. Record the wrongful act. Complaint to the employer. Do not delay. If employer fail to act, employee can leave and claim constructive dismissal. Make a police report. Victim may also file a civil claim for compensation for tort of sexual harassment or assault/battery. Injunctions may be obtained against the harasser. Victim may sue the harasser and also the employer for breach of employer’s duty to provide a safe working place.
No witness? Its ok.
It does not matter that there was no witness who saw the harassment or that there was no corroboration. Absence of corroboration does not defeat a claim of sexual harassment. Why? A victim does not file a complaint of sexual harassment for the pleasure of it as she is exposed to public ostracization and face anxiety at workplace and in public. Furthermore, such conducts take place in private.
What employers must do?
Provide a safe workplace for employees. Have a formal policy on sexual harassment at workplace. Employer must provide protocol for complaints of sexual harassment. Reporting channels must be confidential as the offender might retaliate.When there is a complaint, employer must take steps to investigate and punish the harasser e.g suspension, dismissal through due inquiry, punishment must be proportionate to the misconduct.
Warning to harassers
Sexual harassment at workplace is a ‘misconduct’ (salahlaku), employee can be dismissed.. Sexual harassment is an offence under the Penal Code – police report, maybe charged in court e.g for molest, outraging modesty and other sexual offences. Civil suit for damages – the victim may file, harasser to pay compensation, injunction maybe issued.
R. Jayabalan
Messrs R. Jayabalan
