A survey by the Women’s Aid Organisation (WAO) has found that most Malaysian women surveyed have experienced some form of sexual harassment at the workplace. The survey found that 62% of 1,010 women surveyed reported experiencing sexual harassment at the workplace and 56% of women have experienced workplace discrimination.
WHY DOES YOUR COMPANY REQUIRE A SEXUAL HARASSMENT POLICY?
It is important for a Company to review its employment letters and adopt a Sexual Harassment Policy because there are serious legal and professional consequences for both employer and employee. Sexual harassment at the workplace can create an unpleasant, hostile, or dangerous work environment impacting the credibility and reputation of the Company. Companies may also be exposed to police reports and legal proceedings.
Some of the recent cases in Malaysia for sexual harassment are as follows:
The landmark case of Mohd Ridzwan Abdul Razak v Asmah Hj Mohd Nor [2016] 4 MLJ 282 is the first case where the High Court of Malaya awarded damages to a victim of sexual harassment at the workplace has opened the doors for survivors to file legal proceedings against a perpetrator.
In the recent case of Loganathan Maniam v Murphy Sarawak Oil Co Ltd [2020] 2 ILR 275 an employee claimed unfair dismissal after he was terminated by the company for committing sexual harassment. The Court upheld the dismissal and found that the Claimant had in fact committed sexual harassment. It was held that:
- The term “sayang” as it is known in the Malay speaking region is an endearment, and generally indicates intimacy and or a relationship beyond friendship when involving two people. The relationship between the claimant and his secretary is an employment relationship, and as a superior he should have kept his relationship with her at a professional level;
- Although his secretary did not expressly object to being addressed as “sayang”, this does not warrant him to address her in that manner, since it is obvious during the testimony that the secretary was displeased with being called “sayang” and that it embarrassed her; and
- Holding a superior position, the Claimant should be aware that gifting female subordinate items which are personal in nature (e.g flowers on Valentine’s Day and perfume) is unacceptable.
WHAT DOES A SEXUAL HARASSMENT POLICY DO?
A well-crafted policy will set out the Company’s zero-tolerance on sexual harassment; it should define behaviors that constitute harassment; outline procedures for filing, investigating and reporting harassment complaints, provide training and workshops and sets out measure to be taken for dealing with substantiated complaints, such as a reprimand, coaching, an apology, suspension or termination.
The policy should be clearly worded to ensure it is easily understood. It is vital for the policy to be applied consistently and fairly and for confidentiality to be always maintained.
The policy must elaborate on the Company’s goals and commitments to a safe workplace and the approaches the Company will take to meet these goals.
SCOPE
The 8 elements that a well-crafted policy should include is as follows:
- Zero Tolerance: Companies must make it clear that there is ZERO TOLERANCE of sexual harassment at the workplace.
- Examples: Giving illustrations of what can be construed as sexual harassment.
- Definition: There must be a clear definition of sexual harassment.
- Duty to Report: Employees who feel they have suffered sexual harassment have to understand that their part in the process is a timely and accurate report to the appropriate management authority.
- Retaliation: Since sexual harassment is often a power move by a superior over a subordinate, those who have been subjected to harassment or witnessed it must know they have protection.
- Complaint procedure: Every step should be clearly spelled out. There must be an Investigation Team set up to deal with sexual harassment complaints. The investigative procedure should also be detailed.
- Confidentiality: Must always be maintained and HR staff have to be trained to deal with sexual harassment complaints in the most discreet manner possible.
- Training: The Company must conduct in-house training and workshops to educate your employees on sexual harassment and how to conduct oneself professionally. Training must also be carried out for the supervisory and managerial teams.
HOW CAN WE HELP YOU WITH YOUR EMPLOYMENT ISSUES?
- Conduct a HR policy audit, review current HR policies and procedures and recommend any suitable changes.
- Review and/or develop company employment policies (sexual harassment, anti-bullying, flexible working arrangements etc).
- Represent companies in industrial court cases (unfair termination, constructive dismissal, retrenchment exercise, forced resignation, disputes on collective agreements).
- Review and/or develop Employee Handbooks.
- Review employment contracts.
- Domestic inquiries & due inquiries.
If you have any queries, please feel free to contact us at info@ravindran.com.my. or call us at 03- 6419 0949.