Don’t Let Sexual Harassers Off the Hook

Women

The nation was shocked by recent email circulated to media portals accusing two male staff of sexually propositioning their female colleagues at BFM radio station. Sadly, there was rather a stony silence for an unspeakable crime, which happened in the very industries expected to spread awareness on the issue. This is in contrast to sexual harassment and abuse cases reported in ministry of health and tahfiz institutions that prompted an in-depth coverage by media for weeks.

Notwithstanding the double standards in this issue, women still need to protect themselves.

The fact that some women resorted to send ‘anonymous letter’ rather than coming forward to lodge complaints stemmed from the fact that they’re not sure what to do, or whether the existing law is rendered ineffective. Recent study by International Women’s Alliance of Family Institution (WAFIQ), Centre for Human Rights Research Advocacy (CENTHRA) and USIM led by Assoc Prof Dr Rafidah Hanim Mokhtar showed that more than half of victims (57.1%) did not lodge any formal complaint, for reasons that they did not think any action would be taken (46.7%), they didn’t know how (13.3%), they were scared of the implications (13.3%), they felt humiliated (11.1%) and a minority of them thought that such acts didn’t matter (4.4%).

The problem is further compounded by the fact that there is no specific law governing sexual harassment at the workplace in Malaysia as yet, so yes these survivors of sexual harassment have opted to be silent.

But life is not, and should not be just rainbows and butterflies for the guilty perverts. Believe it or not, they can be prosecuted by court and sued under relevant laws.

Since Sexual Harassment Act which will provide more detailed measures in punishing these sexual offenders is yet to be passed by the Parliament, there are other provisions of law in Malaysia that can be used as a tool to fight against this horrifying trend. It is saddening that most cases are unreported and stay behind closed doors as victims are afraid of their co workers who happened to be their superiors and to some extent, are not even aware that they are being sexually harassed.

So let’s first understand the definitions of sexual harassment in the existing acts:

Section 2 of the Employment Act 1955 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;”

The Malaysian Ministry of Human Resources in Article 4 of the Code Of Practice On The Prevention And Eradication Of Sexual Harassment In The Workplace has similarly defined sexual harassment as;

“Any unwanted conduct of a sexual nature having the effect of verbal, non-verbal, visual, psychological or physical harassment:This Code also specifies that sexual harassment can be either sexual coercion made by people in position of power to humiliate or put a threat to you or sexual annoyance where someone purposely make the work space unwelcoming for you.

Although it is not legally binding, this policy gives certain parameter to the unfortunate workers in identifying forms of sexual harassment as well as helping them in providing valid reasoning to the court or police when in need.

In a landmark case of Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor [2016] 4 MLJ 282, a female worker, Asmah filed a complaint against Mohd. Ridzwan with their employer for verbally harassing her thus a committee was set up to investigate the matter. Although there was insufficient evidence for a disciplinary action, a strong administrative remand was given and in result, Mohd. Ridzwan’s work contract was not renewed. Federal Court then awarded Asmah RM100,000 as general damages.

The above case has become a precedent to what may be the legal consequence of sexual harassment occurring in workplace as victims today are allowed to sue their harassers and claim compensation from Malaysian court.

Moreover, in combating sexual harassment in workplace, the Ministry of Human Resources (MoHR) has amended the Employment Act in 2012, as to put in section 81F to made it compulsory for employers to investigate any complaints of sexual harassment committed either by a co-worker, client or customer of the employer. This section is open to all persons who have a contract of/for service, not limited to those earning below RM2,000.Failure of an employer to act on the complaint of sexual harassment will deemed him to have committed an offence and may be liable to a fine of up to RM10,000, if found guilty.

Therefore, among the actions which can be taken by your employer upon reading and investigate such complaints can range from firing the offender, suspending the offender, changing the offender’s department.

In addition, the victim may file a claim against the employer for constructive dismissal by resigning from employment due to the workplace being unsafe. A victim of sexual harassment may also initiate a tortious lawsuit against the harasser in the civil court for sexual assault or battery. Section 509 of the Penal Code gives absolute right to the victim of sexual harassment to bring their claim to court.

An example of this act in operation would be when it is used to charge a man who blackmailed any women by threatening to spread her nude pictures. Such person could be imprisoned for a term which may extend to five years or with fine or with both if found guilty.

So to all women out there,  please report immediately to the police if any of you or your teammates get harassed in the office.

In conclusion, as we are waiting for a stricter law to be enacted to efficiently eliminate the trend of sexual harassment in workplace, just remember these two courses of action in demanding for your justice.

1. Bring the claim to your human resource department. Your employer is duty bound to investigate the case.  If no appropriate action is taken, and in the case where the harasser is the owner of the company, you may forward the complaint to the Ministry of Human Resource.

2. File a police report, where a proper documentation will be recorded and this will entitle you the right to sue the said offender in court.

3. If you are too afraid to do this alone, get assistance from women’s NGOs in dealing with the matter. You are not walking alone. WAFIQ for instance does offer assistance in channelling the complaints to the right authorities, besides arranging for psychological counselling, if needed.

All parties must work hand in hand in spreading awareness of sexual harassments and we commended Dato Seri Wan Azizah, the minister in charge of The Ministry of Women, Family and Community Development for the assertiveness in enacting The Sexual Harassment Act. To add, WAFIQ applauds The Star’s move in following up this event to ensure public awareness on sexual harassment trend in the workplace.

Nur Farihah Meor Mazli
Youth & Media Exco
International Women’s Alliance for Family and Quality Education
WAFIQ

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