Sexual harassment at workplace. Do you know your rights?

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Sexual harassment is one of the most detestable crimes that can be committed in the workplace.

Not only does it cause severe distress and feelings of revulsion, disgust, anger and overall helplessness, it also discriminates and denigrates the victim, relegating them to second-class statuses in their workplace; going against the principle of equality of treatment and justice. Victims of sexual harassment often experience severe trauma, anxiety, depression and feelings of low self-esteem; and will adversely affect their moral and job performance.

 

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We met up with a law consultant David Kanagaraj to talk about workplace crime and the laws surrounding it.

How is sexual harassment defined?

Sexual harassment can be described to be anything that isn’t deemed acceptable in a public social setting, according to Kanagaraj. “Whoever intending to insult the modesty of any person, utters any word, makes any gesture or exhibits any object, intending that such words or sound shall be heard, or that such gestures or objects shall be seen by such person as intruding upon the privacy of such person, shall be punished with imprisonment for a term which may extend to 5 years or with fine, or both.”

 

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According to Ashgar Ali Ali Mohammed (2006), an assistant professor at the International Islamic University Malaysia, sexual conduct is differentiated into 5 groups:

  • Verbal harassment such as offensive or suggestive remarks, comments, jokes, jesting, kidding, sounds and questioning,
  • Non-verbal/gestural harassment such as leering or ogling (to look at someone in an unpleasant way) with suggestive overtones, licking lips or holding or eating food provocatively, hand signal or sign language denoting sexual activity, and persistent flirting (to behave towards someone in a way that shows you are sexually attracted to him/her, although you do not really want a relationship with him/her);
  • Visual harassment, for example, showing pornographic materials, drawing sex based sketches, writing sex-based letters or sexual exposure;
  • Psychological, for example, repeated unwanted social invitations, persistent proposals for dates or physical intimacy; and
  • Physical harassment, for example, inappropriate touching, patting, pinching, stroking, brushing up against the body, hugging, kissing, fondling or sexual assault.

 

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Sexual behavior can further be distinguished between two types:

  • Sexual annoyance
    • Sexual conduct that is offensive, hostile or intimidating to the recipient, but has no direct link to job benefits. (Harassment by employees of the same level)
  • Sexual coercion
    • Sexual conduct demanded by a superior who offers power, promotion or salary in an attempt to coerce a subordinate to grant a sexual favor. If the subordinate agrees to the solicitation, they will gain job benefits, but will gain heavy detriments should they refuse.

How to fight it in the workplace?

 

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Kanagaraj revealed that the law has since been amended to fit the workplace, but the new amendments, work to the detriment of the victim. Now, whenever there is sexual harassment in the workplace, instead of lodging a complaint to the authorities or superiors, the victim has to follow these procedures:

  1. Where there is sexual harassment, lodge a complaint to the employer, and the employer has 30 days to decide whether he wants to investigate the complaint. The employer may refuse the complaint under two circumstances:
    • if the complaint has previously been inquired into and no sexual harassment has been proven, or
    • if the employer is of the opinion that the complaint is not made in good faith.
  2. If the employer doesn’t investigate, then the victim has to complain to the labor department, and the labor department has another 30 days to carry out the complete investigation.
  3. If the labor department finds that there’s been sexual harassment, action can be taken against the perpetrator: dismissal without notice, downgrading or any other punishment which the employer deems just and fit. The victim will be entitled to termination benefits and balance of wages.

All in all, after the victim lodges a complaint, they still have to wait for at least 2 or 3 months for the investigation to be settled, and it can be hell for the victim to have to bear working with the perpetrator within that time.

Leaving on constructive dismissal

 

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Alternatively, the victim may also walk out of the company on constructive dismissal. This means that the company has committed a serious breach of contract. There is an obligation in every contract, that the employer must provide a place of work that is safe and comfortable, and this applies to physical and mental safety as well. As someone who gets sexually harassed undergoes emotional and mental strife, it becomes a breach of contract.

Court dismissal cases

 

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There have also been many cases brought to the industrial court, where either employees and employers have been dismissed for sexual harassment.

Such cases include:

  • In Fuchs Petrolube [M] Sdn Bhd v Chan Puck Lin @ Chan Pak Nean, a sales manager used to go to customers’ places for business. In one place, he was attracted to a married woman, and started calling her at odd hours, sending her birthday cards, and asking her out for dinner. She finally complained, and the company investigated and dismissed him, and the court ruled it to be justified.
  • In Melewar Corporation Sdn Bhd v Abu Osman, the HR manager was found to be sexually harassing employees, and the case was brought to court. However, the manager didn’t turn up for the hearing, and the court ruled that any action the company takes against him would be justified. He was actually not dismissed but downgraded to a lower position and he considered himself constructively dismissed.
  • However, there are also decisions made in court which defy logic. In Edwin Micheal Jalleh v Freescale Semiconductor Malaysia, the Claimant, Edwin, slapped the buttocks of a factory operator. Edwin was dismissed pursuant to a domestic inquiry and he made a representation for reinstatement which the Minister referred to the Industrial Court. The Chairman of the court, in accepting the evidence of the company and stating that it was a serious misconduct for a man to touch a woman in sensitive parts of the body, however, decided that the company should not have dismissed him because the woman at that time was fully smocked and her flesh was not violated. Pursuant to this, she awarded maximum compensation to the dismissed employee. The company had to appeal to the Court of Appeal to finally secure a judgement that whether a woman was dressed or not does not change the seriousness of the offence and that in this case the Industrial Court decision was perverse and therefore, quashed it.

Conclusion

 

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One may think that these crimes will never happen to them, but there is always the slight chance. It is hence highly important for workers to know when their rights are being violated, and how to deal with them in order for them to be able to counter this horrible crime if it does happen, and bring down justice who deem themselves entitled to pleasure at the expense of others. Only then, will everyone be able to commit to their tasks with joy and happiness.

Christopher Yee

Author

Christopher Yee

Chris is a frequent traveller of worlds beyond the screen, and has been to places like Skyrim and Ferelden more times than he can count. When not indulging in escapism, he enjoys annoying the neighbours with his guitar and pondering the answers to life's great questions; like the meaning of life, and what to have for lunch.

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