CHAPTER: WORKPLACE ISSUES

INTRODUCTION SEXUAL HARASSMENT

1. Sexual harassment means any unwanted conduct of a sexual nature having the effect of
verbal, non-verbal, visual, psychological or physical harassment. Whilst it may be more
common at the workplace, it can occur anywhere, even at the safe haven called home. The
perpetrator and the victim may be of any gender. It is important to know that sexual
harassment is determined based on the subjective perceptions, feelings and reactions of
the recipient. The intention and motive of the perpetrator are irrelevant.

2. Since October 2017, the #MeToo Movement, a hashtag used on social media to
demonstrate the widespread of sexual harassment and sexual assault at the workplace has
spread virally to at least 85 countries. The movement has witnessed the unity amongst the
victims of sexual assault and sexual harassment to stand up against their perpetrators. It
provides a platform which empowers the victims through empathy, to speak up, share their
stories, and to create awareness on the magnitude of this prevailing and continuing social
problem.

1. The principle of equality is the most fundamental of human rights and has been described
as the “starting point of all liberties”. International human rights law reflects this belief.
Art.3 of the Universal Declaration of Human Rights, 1948 (UDHR) declares that all human
beings are born free and equal in dignity and rights. The UDHR is not a treaty but it
embodies a moral authority and sets out a common standard of achievement of all peoples
and nations.[2] The UDHR is the root document from which the international human rights
treaties have grown.

2. Art. 8 (1) of the Federal Constitution reads: All persons are equal before the law and entitled
to equal protection of the law. Art 8 (2) reads: Except as expressly authorized by this
Constitution, there shall be no discrimination against citizens on the ground only of religion,
race, descent, place of birth or gender in any law or in the appointment under a public
authority or in the administration of any law relating to the acquisition, holding or
disposition of property or the establishing or carrying on of any trade, business, profession,
vocation or employment. (emphasis added).

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3. The Convention on the Elimination of All Forms of Discrimination Against Women, 1979
(CEFDAW) is a women’s rights instrument. It contains elements of both civil and political
rights, and economic, social and cultural rights. Malaysia has signed and ratified CEFDAW in
1995. Art. 1 of CEFDAW reads: For the purposes of the present Convention, the term
“discrimination against women”, shall mean any distinction, exclusion or restriction made
on the basis of sex which has the effect or purpose of impairing or nullifying the recognition,
enjoyment or exercise by women, irrespective of their marital status, on a basis of equality
of men and women, of human rights and fundamental freedoms in the political, economic,
social, cultural, civil or any other field. (emphasis added).

4. A preliminary survey in 2021 by the Centre for Governance and Political Studies (Cent-GPS)
in collaboration with the All Women's Action Society (Awam), found that Malaysian women,
aged between 18 and 30-years-old, regularly face sexual harassment, with 44 per cent
encountering teachers making sexually provocative jokes. The survey which involved 1,056
women nationwide also found that 57 per cent of respondents experienced verbal sexual
harassment on a regular basis when walking on the streets. The survey also found that 68 per
cent of the respondents did not feel safe driving alone at night followed by 17 per cent who
said they did not know and 15 per cent who felt safe driving alone at night," it said. A total
52 per cent of women also do not feel safe alone in cinemas while 37 per cent said yes they do and
11 per cent said they did not know. The survey also found that 71 per cent of respondents said
they had to change their travel routes or routines due to fear of being sexually harassed.

5. In a survey by Women’s Aid Organisation, 62% out of the 1,010 Malaysian women surveyed
reported that they experienced some form of sexual harassment in their workplace.

BACKGROUND TO SEXUAL HARASSMENT LAW MALAYSIA-PENAL CODE

1. From a criminal perspective, although some forms of sexual harassment which amount to
“Outrage of Modesty” and “Insult of Modesty” would be caught under Section 354 and 509
of the Penal Code respectively, a specific provision is still lacking to outlaw sexual
harassment. The high standard of proving beyond reasonable doubt and reliance on the
police to handle the matter also poses difficulties to the victims.

2. Further, Section 509 does not consider the modesty of a man. In today’s society, both
genders are equally susceptible to sexual harassment.

BACKGROUND TO SEXUAL HARASSMENT LAW MALAYSIA- CODE OF PRACTICE ON THE

PREVENTION AND ERADICATION OD SEXUAL HARASSMENT IN THE WORKPLACE IN 1999.

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1. The Ministry of Human Resources published a Code of Practice on the Prevention and
Eradication of Sexual Harassment in the Workplace in 1999 ("Code of Practice") as a guide
for both employers and employees alike. The 1999 Code of Practice has been widely
referred to by the courts when interpreting whether a conduct amounts to sexual
harassment.

2. The definition of sexual harassment in the Code of Practice is similar to the definition under
the EA 1955. It provides that sexual harassment amounts to: "Any unwanted conduct of a
sexual nature having the effect of verbal, non-verbal, visual, psychological or physical
harassment; that might, on reasonable grounds, be perceived by the recipient as placing a
condition of a sexual nature on her/his employment; or that might, on reasonable grounds
be perceived by the recipient as an offence or humiliation, or a threat to her/his well-being,
but has no direct link to her or his employment."

3. The Code of Practice further divides this definition into two categories: "sexual coercion"
and "sexual annoyance" which, briefly, means the following:

Sexual Coercion – Where the sexual harassment act/conduct results in some direct
consequence to the victim's employment.An example of sexual coercion includes a situation
where a superior threatens to deny job benefits to a subordinate if the subordinate refuses
the superior's request for a date.

Sexual Annoyance – Where the sexually-related conduct is offensive, hostile and/or

intimidating to the recipient, but nonetheless has no direct link to any job benefits. This
definition also extends to sexually-related conduct by the company's clients towards
employees.An example of sexual coercion includes a situation where a colleague constantly
makes suggestive and offensive sexual remarks to another colleague of similar rank.

4. The Code of Practice provides that sexual harassment is not confined to acts towards female
employees only. It provides for acts done towards both male and female employees, as
perpetuated by either gender.

BACKGROUND TO SEXUAL HARASSMENT LAW MALAYSIA-EMPLOYMENT ACT 1955.

1. Until 2012, there were no statutory provisions on sexual harassment in Malaysia. In April
2012, the Employment Act 1955 was amended to require employers to inquire into
complaints of sexual harassment. This amendment came into force on 1 April 2012. However,
the amendments did not provide for a complainant to claim damages from their harasser or
from their employer. Employment (Amendment) Act 2012 (Act A1419), which came into
force on 1 April 2012.

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2. This Act included an amendment to include Part XVA into the Employment Act 1955 (Act
265). This amendment provided for the manner in which employers should deal with
complaints of sexual harassment at the place of work ie, it puts the employer to task. This
amendment unfortunately did not address the rights and liabilities of the harasser and the
victim.

3. Sexual harassment is defined in the Employment Act 1955 ("EA 1955") 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."

4. Under Section 81A of the EA 1955, anyone can make a sexual harassment complaint,
whether it is: by an employee against another employee; by an employee against any
employer; or by an employer against an employee.

Case Study Shamshir Alam S M Khairuddin v IBFIM (AWARD NO. 662 OF 2019, 21 February 2019)

Claimant grabbed the complainant’s arm and said “sedap jugak pegang lengan kau ni” (It’s quite nice to hold
your arm) and when the complainant tried to pull back, he pulled her hand again and said “cantik jugak jam”
(Your watch is nice too); Claimant caressed complainant’s arm; and Claimant rubbed and caressed the
complainant’s back while uttering “ok ke.. stress keje ke… banyak keje ke?” (Okay or not… your work is
stressful… a lot of work?)

Case Study Loganathan Maniam V. Murphy Sarawak Oil Co Ltd (AWARD NO. 448 OF 2020, 20 February 2020)

Claimant called the complainant “sayang” publicly; Gave her unsolicited presents such as perfume, hand
cream, a floral phone cover and chocolates on Valentine’s Day; Touching her cheek, sending her suggestive
messages via WhatsApp; and Instructing her to carry out work outside her job scope such as picking him up
from the airport, following him to buy his attire for a team building dinner; and expecting her to show him to
his hotel room during the team building event.

SEXUAL HARASSMENT: CIVIL REMEDY

1. While the Employment Act does cover sexual harassment in the workplace, but there was
no law that allowed sexual harassment victims to bring the case to court. If no law exists, it
meant that you technically can’t sue on it. Before June 2016, all sexual harassment
complaints are dealt with by the employer alone and their decision would be the end of the
road. But this changed after the Federal Court case of Mohd Ridzwan Abdul Razak v Asmah
Hj Mohd Nor (2016). Federal Court case of Mohd Ridzwan Abdul Razak v Asmah Hj Mohd
Nor (2016)- This means that you can now sue for sexual harassment.

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2. In June 2016, the Federal Court of Malaysia in Mohd Ridzwan Abdul Razak v Asmah Hj Mohd
Nor made a landmark decision in introducing the tort of sexual harassment into our legal
and judicial system. The Federal Court, in a landmark ruling in 2016, allowed employees
who are sexually harassed at their work place to file a civil suit to claim damages against the
perpetrators. The courts decided to step in and engage in “judicial activism”. It means that
they agreed that it was necessary to step in and create a new law – the tort of sexual
harassment:

Case Study Mohd Ridzwan Abdul Razak v Asmah Hj Mohd Nor (2016):

In 2009, the alleged victim, Asmah Haji Mohd Nor, and her alleged harasser, Mohd Ridzwan Abdul Razak, were
both employees of Lembaga Tabung Haji. Asmah was a senior manager who reported to Ridzwan, the General
Manager of the Risk Management Department. On 29 July 2009, Asmah lodged a complaint to the Chief
Executive Officer (“CEO”), alleging sexual harassment from Ridzwan. As a result of this complaint, the company
set up a committee to inquire into the complaint and the investigations took place from 1 September 2009 to
16 September 2009. The investigation found that there was insufficient evidence to warrant any disciplinary
action but the Human Resources Department decided to issue a strong administrative warning to Ridzwan.
Asmah then applied to transfer to another department in the company. However, Ridzwan was aggrieved by
the complaint and decided to...sue Asmah for defamation. Among other things, Ridzwan claimed that the
complaint had affected his reputation and standing as a good Muslim, as a senior member of the company,
and it led to his contract not being renewed by the company. Before suing Asmah, Ridzwan actually lodged a
complaint with the company and requested the company to take action against Asmah for lodging her sexual
harassment complaint without proof. However, no action was taken by the company and on 9 December
2011, he decided to sue Asmah for defamation, a declaration that he had not sexually harassed her, and
damages. Basically, he said that Asmah defamed him and because of this, he wanted money and a statement
from her stating that he did not sexually harassed her. In return, Asmah counterclaimed for damages for the
sexual harassment that she faced and relied on a psychiatrist report to explain the repercussions of the
harassment on her.

According to the Federal Court Judgment. Some of the conversation which took place was as follow- Kalau you
nak tahu ‘benda’ lelaki tu berfungsi ke tak ikut orang- orang tua, ikat ‘benda’ tu dekat tali. Tali tu sambungkan
dengan buah kelapa. Kalau buah kelapa tu terangkat, maksudnya ‘benda’ tu ‘good’. “Sexual graph of a person,
men after 50 is no use. Kalau 20 it shoot up. 30 graf turun. When 40, it shoots up again” As a literal translation
for you guys, the statement reads: “According to the elderly, in order to find out if a man’s genitals are
working, you have to tie it to a string, connected to some coconuts. If the coconuts are lifted, it means that the
genitals are ‘good’. The sexual graph for men shows that men after 50 are useless. While men are in their 20s,
the graph shoots up, goes down in the 30s and shoots up again in the 40s.” Other conversation was such as
–“You nak kahwin dengan I tak, I banyak duit tau”. “Would you prefer married man”. “You ni selalu sangat
sakit. You kena kahwin tau. You nak tak laki orang”.

3. Justice Tan Sri Suriyadi Halim Omar said sexual harassment is a very serious misconduct and
in whatever form it takes, could not be tolerated by anyone. According to her-“We need
also to highlight a few concessions made by parties, namely that in Malaysia the tort of
sexual harassment at the time of filing of the action did not exist, nor any legislation had

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 been promulgated on the law of sexual harassment prior to the Employment (Amendment)
Act 2012 (Act A1419), which came into force on 1 April 2012. This Act included an
amendment to include Part XVA into the Employment Act 1955 (Act 265). This amendment
provided for the manner in which employers should deal with complaints of sexual
harassment at the place of work ie, it puts the employer to task. This amendment
unfortunately did not address the rights and liabilities of the harasser and the victim.”

4. Justice Suriyadi said there was ample evidence to show that the appellant (Mohd Ridzwan)
had uttered vulgar and sexually explicit rude remarks, either addressed directly to the
respondent (Asmah) or in her presence, and knowing that she would hear it. The judge said
after mulling over the matter, the panel arrived at a decision to undertake some judicial
activism exercise and decided that it was timely to import the tort of harassment into our
legal and judicial system, with sexual harassment being part of it. The panel also underlined
definition of sexual harassment, taking the form of verbal and even physical, which include
sexual innuendos, comments and remarks, suggestive, obscene or insulting sounds, implied
sexual threats, leering, ogling, displaying offensive pictures and making obscene gestures.

SEXUAL HARASSMENT: THE ANTI SEXUAL HARASSMENT ACT 2022.

1. The Anti-Sexual Harassment Act 2022 ("Act") was passed by the Dewan Negara on 11
August 2022. On 28 March 2023, several provisions of the Act came into effect, and it is
anticipated that the rest of the Act will come into effect in stages.

2. According to Women, Family and Community Development Minister Datuk Seri Rina Harun-
“The laws cover all individuals irrespective of gender,” she said, adding that any uncalled
behaviour in any form, be it verbal or non-verbal, visual, signal or physical directed towards
another person and offends, disrespects or harms their well-being, is categorised as sexual
harassment. For those who get victimised for revealing outfits, Rina said it could fall under
the category of sexual harassment and be referred to the tribunal.”

3. Under the law, those found to have committed sexual harassment may end up paying their
victims compensation of up to RM250,000 or be jailed for two years. Apart from being
ordered to make restitution, an offender will also be required to issue an apology. If the
sexual harassment is done in public, the offender will have to make a public apology.
Companies would also be required to display anti-sexual harassment posters or materials in
the workplace. A penalty of RM50,000 will be imposed on companies which fail to act
against incidents of sexual harassment in the workplace. A 12-member Anti-Sexual
Harassment Tribunal, comprising former members of the judiciary or experienced lawyers,
would be set up for the purpose.

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CONCLUSION

1. Research from the last four decades has consistently shown that sexual harassment is
a widespread problem for women. They are predominantly more likely to be sexually
harassed than men, are more likely to recognise sexual harassment and see it as a
problem than men, and younger women are most at risk. In terms of what this looks like,
it’s important to realise that people’s experiences of harassment belong in a continuum of
sexual violence. This ranges from innocuous spoken and unspoken behaviour, to
experiences of unwanted physical contact and sexual assault or rape.

2. We have an obligation to make workplaces safe environments that will foster dignity and
acceptance. The right to work with dignity is a human right. Existing employee harassment
training and independent tribunals are essential in the fight against sexual harassment, but
the organisational culture we are part of is equally crucial. We need to respect and listen to
one another.

---------------------------------------------------THE END---------------------------------------------------------------

References and further reading

Barbara Goodwin, Ethics at Work (1st edn, Kluwer Academic Publishers 2000)
Francis P McHugh, Ethics in Business Now (1st edn, MacMillan Education Ltd 2001)
Gabriel Flynn(eds), Leadership and Business Ethics (Volume 25n, Springer 2008)
Norman E Bowie (eds), The Blackwell Guide to Business Ethics (Blackwell Publishing 2001)
Robert W Kolb(eds), Encyclopedia of Business Ethics and Society (SAGE Publications 2008)

Journal Article

Dennis A Pitta, Hung-Gay Fung, Dr Y S Tsiang, ‘Ethical issues across cultures: managing the
differing perspectives of China and the USA’ Journal of Consumer Marketing (1999) Vol 16 No 3
240.

Historical Developments of Business Ethics: Then to Now O.C. Ferrell, University of New Mexico
Linda Ferrell, University of New Mexico

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Online references

https://www.scu.edu/ethics/ethics-resources/ethical-decision-making/what-is-ethics/

https://www.intheblack.com/articles/2015/04/01/why-ethics-and-law-are-not-the-same-thing

http://www.asiaone.com/health/glaxosmithkline-settles-healthcare-fraud-case-32-billion

https://www.theguardian.com/commentisfree/2011/apr/08/religion-ethics-bible-moral-
doctrine

https://www.encyclopedia.com/science/encyclopedias-almanacs-transcripts-and-maps/ethics-
v-religion-and-morality

http://theconversation.com/the-trolley-dilemma-would-you-kill-one-person-to-save-five-57111

https://managementhelp.org/businessethics/index.htm

https://soniajaspal.wordpress.com/2010/11/04/lessons-in-ethics-from-richard-branson/

http://lawrencefine.com/businessethics/the-history-of-business-ethics/

https://www.slideshare.net/jkpayal/business-ethics-28984331

De George, Richard T. (2005) “A History of Business” from the website of the Markkula Center
forAppliedEthics,http://www.scu.edu/ethics/practicing/focusareas/business/conference/
presentations/ business-ethics-history.html

TUTORIAL QUESTIONSSA

1. Explain the law on sexual harassment in Malaysia.