How to Deal with Sexual Harassment Case In the Workplace? Every HR Must Know!

The recent news of sexual harassment at a local radio station sent shockwaves across the country. But it seems that many are unclear about the procedures of handling sexual harassment allegations in Malaysia. Unfortunately, there are no specific laws in Malaysia that address sexual harassment (as of January 2018).

You should also know that sexual harassment is NOT the same as sexual assault (which is a criminal act).

In this article we will explore the legal context of sexual harassment in the workplace.

Definitions

According to section 81A of the Employment Act 1955 (2012 revision), “―sexual harassment means 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;"

The Code Of Practice On The Prevention And Eradication Of Sexual Harassment In The Workplace defines sexual harassment as:

"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 his/her well-being, but has no direct link to her/his employment "

In The Code of Practice, sexual harassment can be broken down into two categories:

Sexual coercion: When someone uses their position of power to gain sexual favours.
Sexual annoyance: When someone acts in sexually suggestive ways to make the work space unwelcoming for you

Handling sexual harassment

In the workplace, sexual harassment allegations are handled internally. The Code of Practice is only a guide and employers are not required to enforce them. But employers are required to investigate any complaints of sexual harassment, according to section 81F of the Employment Act 1955:

81F. Any employer who fails—

(a) to inquire into complaints of sexual harassment under subsection 81B(1);

(b) to inform the complainant of the refusal and the reasons for the refusal as required under subsection 81B(2);

(c) to inquire into complaints of sexual harassment when directed to do so by the Director General under paragraph 81B(5)(a) or subsection 81D(2); or

(d) to submit a report of inquiry into sexual harassment to the Director General under subsection 81D(2);

commits an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit.

The main takeaway from this is that an investigation is compulsory and the employer has to be the one to investigate the case. An employer can take actions ranging from firing or suspending the offender, changing the offender’s department and so on.

Legal actions

According to section 509 of the penal code, a sexual harassment victim can report the incident to the police.

"Whoever, intending to insult the modesty of any person, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen by such person, or intrudes upon the privacy of such person, shall be punished with imprisonment for a term which may extend to five years or with fine or with both."

Procedures in handling sexual harassment in the workplace

The EA 1955 - Section 81A says that sexual harassment victim should send a written complaint to the HR department. THe law has clearly defined sexual harassment complaint can be made by an individual against another person if there are elements of act that is sexual in nature and this also includes making gender related comments that are humiliating or offensive.

Victim’s role and action

Step 1: Make an immediate action - Confront, Trigger and Communicate

Immediately tell the offender that you do not accept such response (Confront) and inform the immediate superior verbally of such harassment without revealing the details of the offender (Trigger). If possible, make an attempt to speak to the offender of your non-acceptance and your concern (Communicate) .

Step 2: Formal complaint on sexual harassment

Write an “official complaint” to the Human Resources Department stating:

(i) Date of incident

(ii) Time of incident

(iii) Location of incident

(iv) Frequency of incident

What the HR department can do

According to Section 81A, HR department must proceed with preliminary investigation within 30 days from the date of receiving the complaint. Result of the investigation must be notified to the complainant or the victim.

If the findings from the investigation shows no substantial evidence, then the HR department shall notify the victim in writing and keep the records of the investigation for future reference in the event the victim makes a follow up complaint of similar nature.

However, if the findings justify that such act is “True” based on the evidence, the HR department shall proceed with the disciplinary action to stop and deter such further incidents from happening. Prompt action will also provide greater trust and confidence for the alleged victim to carry out their work without any worries, fear or emotional instability.