Under Section 2 of the Employment Act 1955 (EA), sexual harassment is defined 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”.
Section 81G of the Employment Act 1955 states that the provisions of sexual harassment based on Part XVA applies to all employers and employees under a contract of service irrespective of the wages.
A ‘complaint of sexual harassment’ includes sexual harassment:
- Made by an employee against another employee
- Made by an employee against any employers
- Made by an employer against an employee
Sections 81B – 81D of the EA includes the legal procedures and duties required to be carried out by employers in a case where a complaint is received regarding a sexual harassment case upon a male or female employee at a workplace.
Complaint made to Employer (Section 81B)
- Upon receiving a complaint on sexual harassment from an employee, an employer of any position that receives the complaint should conduct an inquiry into the complaint. Companies with a Sexual Harassment Policy may adhere to the protocols stated in the policy when inquiring the complaint.
- An employer who decides to refuse to further inquire on the complaint should provide reasons to the complainant in writing for the refusal within 30 days of the complaint.
- An employer may refuse to inquire a sexual harassment complaint made by an employee if:
- Inquiry has been previously done on the complaint and no sexual harassment has been proven.
- The employer believes the complaint of sexual harassment is frivolous, vexatious or is not made in good faith.
- If the complainant is dissatisfied with the refusal of complaint, he/she may refer the matter to the Director General (DG).
- After reviewing the matter referred to the DG, he/she may:
- Direct the employer to conduct an inquiry if he/she believes the matter should be inquired.
- Inform the complainant that no further action will be taken against the complaint if he/she agrees with the decision of the employer to refuse the complaint.
Actions to be taken by Employer
If the occurrence of sexual harassment is proven upon conducting the inquiry on the complaint, employers are required to take the necessary actions as listed below:
- In the case where the person who the complaint of sexual harassment is made against is an employee, the employer may take the following disciplinary actions:
- Dismiss the employee without notice; or
- Downgrade the employee; or
- Impose any other lesser punishment as the employer deems just and fit, and where the punishment of suspension without wages is imposed, which shall not exceed a period of two weeks
- In the case where the person who the complaint of sexual harassment is made against is a person besides an employee, it is recommended that the person is brought before an appropriate disciplinary authority.
Complaint made to Director General (DG) (Section 81D)
- If a sexual harassment complaint is made to the Director General, the DG shall assess the complaint and may direct the employer to further inquire the complaint.
- An employer who has been directed to further inquire on a sexual harassment complaint by the DG should submit a report on the inquiry to the DG within 30 days after the direction.
- If case the person who the complaint of sexual harassment is made against is an employer, the DG shall conduct an inquiry on the complaint himself/herself.
- Upon inquiring the complaint, the DG may dismiss the complaint if:
- Inquiry has been previously done on the complaint and no sexual harassment has been proven.
- The DG believes the complaint of sexual harassment is frivolous, vexatious or is not made in good faith.
- If the DG decides to refuse to further inquire on the complaint, he/she should provide reasons to the complainant in writing for the refusal within 30 days of the complaint.
Actions to be taken
If the occurrence of sexual harassment is proven upon conducting the inquiry on the complaint, the complainant may terminate his/her contract of service without notice.
If the complainant decides to terminate his/her contract in service, he/she is entitled to:
- Wages as if the complainant has given a notice of termination of contract of service
- Termination benefits and indemnity
Offence
An employer will be imposed a fine of not more than RM10, 000.00 if he/she fails to:
- Inquire into sexual harassment complaints
- Inform the complainant on the reasons of refusal of inquiry against sexual harassment complaint in writing
- Inquire into complaints when directed by the Director General (DG)
- Submit a report of inquiry into sexual harassment to the Director General (DG)
