Following the Employment Act 1955, Sexual Harassment is defined as “any unwanted conduct of a sexual nature, whether verbal, nonverbal, 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.” In Vasuthevan Anthaly v. Freescale Semiconductor (M) Sdn Bhd [2013] 1 ILR 73, Court made reference to Ashgar Ali’s book “Dismissal from Employment and the Remedies” stating that “Sexual harassment refers to sexual conduct, which is imposed on, and is unsolicited or unreciprocated by the recipient, for example, repeated unwelcome sexual comments, looks or physical contact, among others.”
Hence, Sexual Harassment can take place in a working environment through any form and employers must take cognizance that sexual harassment can take place through any form and employer owes a duty to the employee to act not only to provide a safe working environment but also to act to protect its employee from any form of sexual harassment.
This is evident in Shamani Devi Chendra Chekheran v. Shangri-la Hotels & Resorts [2017] 4 ILR where the Company had charged the Claimant on grounds of sexual harassment. Vulgar and sexually-explicit words used by the claimant in her Facebook postings and SMSs, in my view, were not only offensive and having suggestive remarks but they are clearly amounted to a sexual harassment.”
Additionally in Abdul Rahman Muhammad v. AirAsia X Berhad (Award No. 1431 of 2022), it further highlights the possibility of sexual harassment verbally and physically between males where Courts stated that “…The charges against the Claimant involvedsexual harassment namely physically, verbally and visually towards his colleague. The DI in its findings stated that it belief the Claimant had indeed sexually harassed Andy. The findings was based on reasonable grounds that the Claimant had committed the offence as per the charges against him.”
“Employers owe a contractual obligation to his employees, female or otherwise to ensure that he provides a safe and conducive working environment in which they can function,” as per Melewar Corporation Bhd v. Abu Osman [1994] 2 ILR 807 which Courts continue “In the context of the problem of sexual harassment in the workplace, it cannot be emphasised strongly enough that the employer would be in breach of a fundamental and essential term of the contracts of employment existing between the employer and his employees if he failed to take steps to put a stop to acts of sexual harassment which had been duly brought to his attention.”
If an employer fails to act to protect its employees, employees are entitled to claim for constructive dismissal, in Khoo Ee Peng v. Galaxy Automation Sdn Bhd (Award No. 656 of 2009), the Claimant had constructively dismissed herself after rejecting the sexual advancement of the Company’s Branch Manager who in return had withdrawn her petrol allowance and assign her on different task. Courts held that “The employer by the lewd behaviour of the Branch Manager had destroyed the implied contractual term of mutual trust and confidence between the parties as employer and employee subjecting the Claimant to humiliation and distress. The Company had breached the root of contract by his conduct.”
Premjit Singh is the Managing Partner of Prem & Associates (www.premlaw.com) and he can be contacted via email at prem@premlaw.com or mobile at 012-5236755.
Article written by Lee Minli.
