In 2016, the Malaysian Federal Court in the landmark decision of Mohd Ridzwan Abdul Razak v Asmah Hj Mohd Nor (more commonly known as the “Lembaga Tabung Haji case”) had introduced the tort of sexual harassment into our legal system. With this decision, a victim of sexual harassment may be able to recover exemplary and aggravated damages from their harasser if he/she has enough evidence to establish the harassment.

Prior to this case, victims of sexual harassment have no rights to claim damages from their harassers. The closest laws we had to deal with sexual harassment are the Employment (Amendment) Act 2012 and the Malaysian Code of Practice on the Prevention and Education of Sexual Harassment in the Workplace 1999, which allow victims to lodge a formal complaint to their employer to carry out investigations, but the laws did not address the rights and liabilities of the harasser and victim.

What was the Lembaga Tabung Haji case about?

An employee of Lembaga Tabung Haji lodged a complaint to the CEO of the company, alleging sexual harassment by her supervisor. The supervisor sued the employee for defamation, and the employee filed a counter-claim seeking damages for sexual harassment. The High Court dismissed the supervisor’s claim, but allowed the employee’s counterclaim. The High Court found for the employee, awarding general damages of RM100,000. and aggravated damages of RM20,000.

On appeal, this finding was upheld by the Court of Appeal on the basis that the supervisor had committed the tort of “intentionally causing nervous shock”. The supervisor appealed to the Federal Court, but the appeal was dismissed. The Federal Court exercised judicial activism and officially imported the tort of sexual harassment into Malaysia’s legal and judicial system.

The Ingredients for the Tort of Sexual Harassment

To sue for sexual harassment, the claimant must prove three elements:

• the existence of a persistent and deliberate course of unreasonable and oppressive conduct by the harasser;

• the conduct was targeted specifically at him/her; and

• the conduct was calculated to cause alarm, disturbance, annoyance or distress to him/her.

Sexual harassment can take both verbal and physical forms, including making sexual innuendos, comments and remarks, making suggestive, obscene or insulting sounds or gestures, leering, ogling, displaying offensive pictures. In establishing harassment, it is not a legal requirement for the allegations to be corroborated by a third party, since most harassments take place in private. The courts in determining a claim of sexual harassment, will scrutinize all evidence before them and arrive at a factual finding decision.

In short, if you ever find yourself to being sexually harassed, you may assert your right by suing your harasser in court for committing a tortious offence!

On the other hand, if you are an employer, do adhere your obligations under the Employment Act 2012 to inquire into sexual harassment claims seriously, and implement appropriate policies and procedures to deal with such complaints.

To conclude, I would quote FCJ Suriyadi Halim Omar from the Federal Court:

“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 or emotional well-being. Perpetrators who go unpunished, will continue intimidating, humiliating and traumatising the victims thus resulting, at least, in an unhealthy working environment.”