Landmark Decision from Federal Court on Sexual Harassment Claim
The Federal Court, in Mohd Ridzwan Abdul Razak v Asmah Hj Mohd Nor, has decided in favour of a female employee who sued his employer based on the tort of sexual harassment. The ruling sets a precedent for employees who are sexually harassed at their workplace to file a civil suit to claim damages against the perpetrators and for similar suits to be heard in the civil courts beyond the ambit of the Employment Act 1955. In this case, Asmah’s claim for RM 120,000 in damages was upheld. This high water-mark decision has introduced another avenue of claim for victims of sexual harassment besides lodging a claim to the Labour Department.
Sexual Harassment is now a tortious claim
Let’s take a look at the background facts of this case to understand it better:
An employee of Lembaga Tabung Haji lodged a complaint to the CEO of the company on 29 July 2009, alleging sexual harassment by her supervisor. Among other things, she claimed that her supervisor had:
- on 19 July 2009, the supervisor uttered vulgar remarks to the employee in the office;
- was fond of making dirty jokes that were sexually oriented in front of his subordinates, without any respect for female subordinates;
- frequently used rude and uncouth words in emails to the employee which the employee found to be disturbing, unethical and intolerable;
- repeatedly offered to make the employee his second wife;
- abused his position as a superior officer by saying anything he wished without regard to moral limits, work code ethics and the feelings of his subordinates.
As a result of the employee, the Company conducted an inquiry from 1 Sept 2009 until 16 Sept 2009. The Committee of the Inquiry later found that there was insufficient evidence to warrant a disciplinary action to be taken against the supervisor. However, the Human Resource Department decided to issue a strong administrative reprimand to the supervisor.
The supervisor commenced legal action against the employee, claiming that her complaint of sexual harassment was defamatory. The employee filed a counter-claim against him, seeking general and aggravated damages for sexual harassment.
The High Court in 2012, made a finding of fact that the allegation of sexual harassment had been established and dismissed the Accused Employee’s claim. The Court also entered judgment for the Complainant’s counterclaim and awarded her RM 100,000.00 as general damages and RM 20,000.00 as aggravated and exemplary damages.
On appeal, this finding was upheld by the Court of Appeal although they did so on the basis that the supervisor had committed the tort of “intentionally causing nervous shock” rather than “sexual harassment”.
Finally, the supervisor appealed to the Federal Court, which dismissed his appeal, where their Lordships arrived at a decision to undertake some judicial activism exercise and decided that it was timely to import the tort of harassment into Malaysia’s legal system with sexual harassment being a part of it.
What is sexual harassment?
Section 2 of the Employment Act 1955, which defines “sexual harassment” as “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.”
Why this case a landmark case?
Until 2012, there were no statutory provisions on sexual harassment in Malaysia until April 2012, the Employment Act 1955 was amended to require employers to inquire into complaints of sexual harassment but the amendments did not provide for a complainant to claim damages from their harasser or from their employer.
Secondly, there has been no reported case where the individual victim has claimed civil remedies such as damages from an alleged perpetrator for sexual harassment. With this recent decision, a victim of sexual harassment can now stands a chance to recover damages from their harasser, provided with sufficient evidence to establish the harassment claim.
The Federal Court, in establishing harassment went on to say that it is not a legal requirement for the allegations to be substantiate by a third party. To hold otherwise would render the victim helpless, since most harassment would take place in private. The courts in determining a claim of sexual harassment, will have to scrutinize all evidence before them and arrive at a factual finding.
“Sexual harassment is a very serious misconduct and in whatever form it takes, cannot be tolerated by anyone. In whatever form it comes, it lowers the dignity and respect of the person who is harassed, let alone affecting his or her mental and emotional well-being. Perpetrators who go unpunished, will continue intimidating, humiliating and traumatising the victims thus resulting, at least, in an unhealthy working environment.”
The message from the apex court of Malaysia is loud and clear: sexual harassment at the workplace cannot and will not be tolerated. While the Code and the Employment Act 1955 were well-intentioned, the introduction of a civil remedy will enable victims of sexual harassment to potentially turn the tables on perpetrators of sexual harassment. This landmark decision is a welcomed change and a step towards creating a safer working environment for the Malaysian workforce.