Sexual Harassment in the Workplace: Selected Court Cases and New Legal Provisions in Malaysia

By Hassan, Kamal Halili; Lee, Yee Zing | Asian Social Science, July 2015 | Go to article overview

Sexual Harassment in the Workplace: Selected Court Cases and New Legal Provisions in Malaysia


Hassan, Kamal Halili, Lee, Yee Zing, Asian Social Science


Abstract

This paper examines the new legal provisions on sexual harassment in the workplace in Malaysia. Prior to the enactment of the new provisions into the Employment Act 1955, the guidelines for sexual harassment were in the form of a Code of Practices. An employee could only obtain legal redress from the courts on the grounds of constructive dismissal after resigning. The employee concerned could also lodge a police report, but the criminal punishment imposed on the offender did not include compensation for loss suffered by the employee. In addition, there was no clear legal redress protecting the employee suffering from sexual harassment while still on the job. Recognizing these inadequacies, the Malaysian government amended the Employment Act 1955 in 2012 by introducing Part XVA on sexual harassment. Results of sexual harassment cases decided by the Industrial Court have been mixed favoring both the dismissed employees as well as employers. The research method adopted in this paper is legal analysis.

Keywords: Malaysia, law, sexual harassment, employees, employer

1. Introduction

The traditional view that women should only confine themselves to house-chores is no longer tenable in the reality of today's world (Voydanoff, 1987). Their contributions to the workforce and the economy are extremely vital to the development of a country. However, involvement in the workforce has exposed women to sexual harassment in their workplaces (Roger, 2012; Welsh, 1999). Sexual harassment is a universal issue and has increased considerably during the last two decades. However, the understanding of sexual harassment in workplaces is still not clear and is at best 'sketchy' (Laxman et al., 2013; Mane, 2002; Margaret, 2001). Research has demonstrated that approximately 50% of women in any particular research sample have experienced unwanted and offensive sex-related behaviors at work places (Magley et al., 1999).

All forms of sexual harassment in workplaces are unwelcome and unwanted. Sexual harassment in the workplace arises when the employer uses his position in the working area to sexually harass his subordinates. Since places of employment are 'home' for more than half of employees' lifetimes in terms of total hours spent, it is important to create a pleasant and conducive workplace for both male and female employees. Sexual harassment is said to be related to the concept of the liberties and equality of an individual. Article 5(1) of the Federal Constitution of Malaysia states that no person shall be deprived of his life or personal liberty saves in accordance with the law.

This judicial pronouncement is echoed in Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang and Anor v. Utra Badi K Perumal [2000] 3 MLJ 281, in which Gopal Sri Ram JCA stated that depriving a person of his reputation amounts to deprivation of 'life' within the meaning under Article 5(1) of the Federal Constitution. Since the reputation of a person is protected by the Federal Constitution, the violation of this right should allow the claimant to receive non-pecuniary compensation. Sexual harassment deprives victims of their liberty and hence violates their rights. Article 8(1) of the Federal Constitution states that all persons are equal before the law and entitled to the equal protection of the law. Hence based on this provision, sexual harassment is prohibited.

Sexual harassment also results in the violation of the fundamental rights in gender equality and the right to liberty and life as enshrined in the Federal Constitution. Since sexual harassment involves the right and liberty of an individual, consciousness of the concept and effects of sexual harassment is crucial. At the same time, women need laws that will provide them with complete protection from sexual harassment (Fitzgerald & Ormerod, 1991; Francis, 1999; Raymond, 2003).

2. Methodology

This study is based primarily on the qualitative method that adopts a critical analysis approach of the legislation. …

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