Sexual Harassment & Gender Discrimination by Janice Anne Leo

Sexual Harassment & Gender Discrimination

Labour Law Conference10 April 2015

Shook Lin k Bok EST 1918KUALA LUMPUR

Janice Anne Leo,Partner.

Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace (“the Code”), in Article 5 discusses 5 forms of Sexual Harassment:

Verbal Harassment: offensive or suggestive remarks, jokes or questions.

Non-Verbal/Gestural Harassment: sexual overtones when leering, ogling, provocative behaviours and sign language denoting sexual activity.

Visual Harassment: showing sex-based materials or pornographic materials

Psychological Harassment: persistent and unwanted invitations and communications

Physical Harassment: inappropriate touching, pinching, stroking, hugging, kissing, fondling and etc.


What is Sexual Harassment?Understanding the Code


Hong Leong Bank Berhad v Adrian JosephD’Cruz (2005) 2 LNS 1904:-

Facts: The employee was dismissed by the Company nine charges of verbal sexual harassment were preferred against him as follows:

“That you as the Assistant Branch Manager of Sitiawan Branch had on 30 July 2002, at about 2:15 pm, in the Manager’s room, verbally harassed Ms. Aw Mei Hwa, an Officer of the Branch by uttering to her words to the following effect:

(a) That she wants to show you her breast and you could see her breast;

(b) That she will open her legs wide whenever you are near her;

(c) That she did the above matters on purpose for you and other staff to see;


(d) That you could tell the colour of her panties that she is wearing;

(e) That you have seen every part of her body;

(f) That you could tell what colour is her nipple;

(g) That she has very high urge for sex;

(h) That you challenged her to put her hand inside the pants of other male staff; and

(i) That you have alleged that she has affairs with other guys.

Your conduct as above tantamount to sexually harassing Ms. Aw Mei Hwa and unbecoming of you as an employee of the Bank.”


Held: The admission of the employee that he had uttered the words as contained in the charges is consistent with what amounts to sexual harassment as explained by Article 4 of the Code.

It was further quoted from the above case that;

“In any society such conduct by the Claimant does certainly warrant instant dismissal. Society does not tolerate such behaviour. The message to be passed down is that if a person sexually harasses another person at a work place, that person can expect instant dismissal, even if that person has had a good track record.”


The Code encourages the establishment of preventive mechanisms at the enterprise level to combat sexual harassment in the workplace. Elements of a comprehensive in-house mechanism outlined by the Code include:

policy statement by the Management to the employees prohibiting sexual harassment in the organization.

a clear definition of sexual harassment to ensure that employees are aware of unwelcomed and offensive conducts and attitudes.



a complaints/grievance procedure to deal with the problem when it arises

enforcement of disciplinary rules

adequate measures to ensure maximum confidentiality and sufficient remedial measures for victim

promotional and educational programs to raise awareness

What is Sexual Harassment?Employment Act 1955

Sexual Harassment as defined by Section 2 of the Employment Act 1950:

“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 above provision was incorporated in the recent amendments to the Employment Act 1950 in 2012.


Case Analysis – What constitute Sexual Harassment?

In Md. Salehuddin Othman v New Straits Times Sdn. Bhd. (2013) 2 LNS 0568, the court held the following acts to constitute sexual harassment:

Wrapping his arm around a female co-worker and clasping her hand against her free will and consent.

Holding the hand of a female co-worker and stroking her arm without her free will and consent.

Patting the buttock of a female co-worker against her free will and without her consent.

Massaging the shoulder of a female co-worker against her free will and without her consent.

Putting his hands around the waist of a female co-worker against free will and without her consent.

Case Analysis – What constitute Sexual Harassment

In the same case, the Court however held that the following do not constitute sexual harassment:-

Uttering the following words; “I want you to come back with me to the hotel in Cyberjaya, I have a room in Cyberlodge.”

Uttering the following words; “I am turned on by your body hair”.

Regularly making phone calls and telling a female co-worker that he is lonely and had not had sex for a long time and asking her to meet you privately

Calling a female co-worker to talk about his personal problems including matters relating to having a personal mistress and telling her that you wanted to have fun with her. When she declined, you uttered, “You are no fun.”

Case Analysis – What constitutes Sexual Harassment.

Inviting a female co-worker to get on a cruise to Phuket and and telling her that “it will be a lot of fun and we will be in different cabins if we go”.

Sitting next to and staring at a female co-worker while saying, “Buat la kerja I nak tengok” and “I suka jari you”.

Regularly requesting her to go on a date with him and send an sms that reads: “how you doing? Suddenly I miss you so much.”

Making the following remarks to a female co-worker; “I want to take you as my partner to Anugerah Bintang Popular in Genting Highlands” then telling her “you pergilah kerja I tunggu you dalam bilik”. Also suggested that the female co-worker should stay another night in Genting Highlands so that he could be with her.

Made the following remarks when she told him not to hold her hands, “I don’t give a fuck about what people have to say, I am the GE and I can do whatever I want. I can even sack a few people you know.”

Case Analysis – What constitutes Sexual Harassment.

Declaring openly that he will only send the complainant to junket if she is nice to him.

Making a unilateral decision to send a complainant to a trip without the knowledge of her superior.

Sent SMS of a personal nature to the effect that you will be pushing her grade up and that she should keep this information to herself.

Called a female co-worker to enquire when was the last time she was promoted and told her that you would be promoting her as “it is the gesture of our friendship”.

Case Analysis – What constituteSexual Harassment?

In Kamarul Zaman Mamat v Nippon Wiper Blade (M) Sdn Bhd (2013) 2 LNS 0517, the following charges against the employee were proven justifying his dismissal by the Company and were held to constitute sexual harassment:-

Suggesting remarks of a sexual nature by saying “marilah duduk sini” with his hands on his thigh.

Leering or oogling with suggestive overtones denoting persistent flirting which made her uncomfortable and unsafe at her workplace.

Inappropriately touching a female employee and putting his hands on her thigh twice in which both occasions she pushed him aside.

What does not constitute sexual harassment? In the book titled “A Guide to Malaysia Code of Practice on Sexual Harassment in

Workplace” by Tengku Dato’ Omar b. Tengku Bot and Maimunah Aminuddin, set out conduct which are not deemed to constitute sexual harassment include;

(a) when a male co-worker compliments your outfit

(b) when he gives you a social hug-kiss and does the same to everyone else.

(c) when he tells a naughty joke which is rather amusing.

(d) if he wants to date you and he is single, but you decline.

(e) if you have done a good job, he pats you on the shoulder

(f) if he leaves a memo complimenting you on your good work.

(g) when he gives you an appointment after office hours and discusses matters with his office door open

(h) When he tells you that you may have to entertain male clients, even at night.

What does not constitute sexual harassment?

Sunway Lagoon Club Bhd v Md Noh Mat Tahir (2007) 2 ILR 273

Facts: The Complainant (a club member) alleged that she was sexually harassed by the employee who gave her a massage in her state of partial undress. The Complainant alleged that the employee fondled her breasts and touched her private parts.

Held: The conduct of the Complainant immediately after the massage was important to prove whether she was actually harassed. After the massage, the Complainant accepted an invite from the employee for coffee, and also asked the employee to give her a lift home. In this case, the court found grave doubts about the veracity of the Complainant’s evidence and found that the need for corroboration was very necessary. This is because the conduct of the Complainant was not consistent with a person who claims to be sexually harassed.

Actions by Employer and Remedies for Failure to Take Action

The Code

encourages employers in any organization to establish an in-house mechanism to strategically deal with complaints of sexual harassment.

Article 16 of the Code encourages employers to develop a separate complaint procedure to deal specifically with the sensitive nature of such complaints.



Article 18 suggests that a complaint procedure should contain at least the following elements:

A step by step procedure for reporting and processing of a complaint with a suitable time-limit for each step

An investigation procedure; andAn appeal procedure to enable dissatisfied party to appeal against

the outcome of an investigation to a higher authority.


Employment Act 1955

-S. 81B(1) requires employer or any class of employers to inquire into a complaint of sexual harassment in a manner prescribed by the Minister.

-S. 81B(2) provides that when employer refuses to inquire into such complaints, the employer shall inform the complainant of the refusal and the reasons for refusal in writing, not later than 30 days after the date of the receipt of the complaint.


S. 81B(3) sets out reasons for which employer may refuse to inquire into such complaints:

a) complaint of sexual harassment has previously been inquired into and no sexual harassment has been proven; and

b) employer is of the opinion that complaint of sexual harassment is frivolous, vexation or is not made in good faith.


Employment Act 1955 - Remedies

S. 81B(4): Complainant who is dissatisfied with the refusal of the employer to inquire into the complaint of sexual harassment may refer the matter to the Director General.



S. 81C: If the employer is satisfied that sexual harassment is proven under S. 81B(1), the employer shall take disciplinary action against the harasser if the harasser is also an employee of the organization.

In the case where harasser is not employed in the organization, the employer shall recommend that the harasser be brought before appropriate disciplinary authority to which the harasser is subject to.


S. 81D(1): When a complaint of sexual harassment is made to the Director General, the Director General shall assess the complaint and may direct an employer to inquire into such complaint.

S. 81E(1): When the Director General decides that sexual harassment is proven, the complainant may terminate his/her contract of service without notice, and if the complainant does, he/she will be entitled to:

(a) wages as if the complainant has given the notice of termination

(b) termination benefits and indemnity provided under the Act or contract of service


S. 81F: Any employer who fails to inquire into complaints of sexual harassment under S. 81B(1) commits an offence and shall be liable to a fine not exceeding ten thousand ringgit, irrespective of the wages of the employee.

Case Analysis – Constructive Dismissal

In Sitt Tatt Bhd. v Flora Gnanapragasam & Anor (2005) 7 CLJ 522, the court held;

Facts: The Claimant claimed that she was constructively dismissed by acts of sexual harassment by her superior, she further

submitted that she has approached two senior officers to complaint about the harassments but neither of them took any steps to rectify the situation.

Held: The two senior officers, Desmond and Nik Murad were guilty of dereliction of duty in not taking any remedial measures when the Claimant informed them of the sexual harassments committed by Sivananda, the Claimant’s superior. All the incidents were reported to them when the claimant could no longer tolerate the harassments. The facts showed that they had connived and condoned the acts of Sivananda. The Claimant was left with no other alternative but to consider herself constructively dismissed and she had lawfully done so.

GENDER DISCRIMINATION

• Gender discrimination or sexism, is prejudice or discrimination based on a person’s sex or gender. It affects both men and women, but is more apparent toward women.

• It has been linked to stereotypes and gender roles, and may include the belief that one sex or gender is intrinsically superior than the other.

Gender Discrimination

• In various ancient societies, the Stone Age, Ancient Egypt and the Anglo-Saxon era, women held many equal positions with men and were commonly afforded equal status. After the adoption of agriculture and sedentary cultures, the concept that one gender was inferior to the other was established; most often this was imposed upon women and girls.

• Gender discrimination is closely related to gender stereotypes formed partly because of patriarchy. Patriarchy is a social system in which males are the primary authority figures central to social organisation, occupying roles of political leadership, moral authority, control of property and where fathers hold authority over women and children.

History &Development ofGender Discrimination

“Most anti-discrimination legislation follows a well-trodden path : those who are equal deserve equal treatment, and, conversely, those who are differently.”

Sandra Fredman, A Difference with Distinction : Pregnancy and Parenthood Reassessed, 110 The Law Quarterly Review at p 106

Gender Discrimination

Gender Discrimination in Malaysia

Malaysia is a signatory to the Convention on the Elimination of All Forms of Discrimination against Women (‘CEDAW’)

• Initially, the Government of Malaysia declared that Malaysia’s accession to CEDAW was subject to the understanding that the CEDAW provisions would not conflict with the provisions of Islamic Sharia’ Law and the Federal Constitution of Malaysia i.e. the Government was not bound by Articles 2(f), 5(a), 7(b), 9 and 16 of CEDAW.

• However, on 6 February 1998, the Government of Malaysia withdrew its reservations with regards to those Articles and is now acceded to all provisions of the CEDAW.

Gender Discrimination in Malaysia • Art. 2 - State Parties condemn discrimination against women in all its

forms, agree to pursue all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake :

(f) to take all appropriate measures, including legislation to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.

• Art 5 - State parties shall take all appropriate measures : (a) to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of

prejudices and customs and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.

Gender Discrimination in Malaysia • Art. 7 - State Parties shall take all appropriate measures to eliminate

discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right :

(b) to participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government.

• Art 9 1. States Parties shall grant women equal rights with men to acquire,

change or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband.

2. States Parties shall grant women equal rights with men with respect to the nationality of their children.


• Art 161. States Parties shall take all appropriate measures to eliminate

discrimination against women in all matters relating to marriage and family relations.

2. The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.


It should be noted that there is no specific legislation that prohibits any form of discrimination, be it gender, race, disability or religion.

Gender Discrimination in Malaysia Federal Constitution, Article 8, Equality

1) All persons are equal before the law and entitled to the equal protection of the law.

2) Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.

Courts & Cases in Malaysia

• In administering the rules of natural justice and fair labour practice, it has become entrenched that gender discrimination is frowned upon by the administration of justice.

• The Courts have in recognising gender discrimination, attempted to balance the rights of both employers and employees.

Cases in Malaysia In the case of Beatrice A/P AT Fernandez v Sistem Penerbangan Malaysia & Ors [2005] 3 MLJ 681, Facts• The employee, an air stewardess with Malaysian Airlines System

(‘MAS’), was dismissed when she fell pregnant in contravention of the terms of the collective agreement between the MAS Employees Union (“MASEU”) and MAS.

• Art 2(3) required her to resign if she became pregnant more than 5 times and in the event she failed to do so, MAS would have the right to terminate her services. She subsequently became pregnant fpr the 5th time and refused to resign. In accordance with the express terms of the collective agreement, MAS terminated her services.

Cases in Malaysia

In Beatrice A/P AT Fernandez v Sistem Penerbangan Malaysia & Ors [2005] 3 MLJ 681,

The employee commenced proceedings at the High Court claiming that the provisions of the collective agreement were discriminating in nature and thus contravened Art 8 of the Federal Constitution.

Cases in Malaysia Beatrice A/P AT Fernandez v Sistem Penerbangan Malaysia & Ors [2003] 4 MLJ 466, the Court of Appeal held :

• The discrimination prohibited by Art 8(2) of the Federal Constitution, as at the date applicable to this case, was on the ground only of religion, race, descent or place of birth, none of which applied to this case. The amendment to the Constitution which added the word ‘gender’ to that provision only took effect from 28 September 2001 c/f the collective agreement which was entered into in 1988.

• On the facts, the case is caught by Art 8 of the Federal Constitution. Clause (1) of Article 8 declares that all persons are equal before the law and entitled to equal protection of the law. A collective agreement is not ‘law’ in the context of Art 8. It is a contract when taken cognizance of by the Industrial Court, is enforceable as an award of that Court. In other words, it is similar to a Court Order. Even a Court Order is not ‘law’ in the context of Art 8.

Cases in Malaysia

Beatrice A/P AT Fernandez v Sistem Penerbangan Malaysia & Ors,

Issue before the Federal Court : Whether Art 8 of the Federal Constitution applied to the terms and conditions of the collective agreement which were itself discriminatory in nature .

Cases in Malaysia Beatrice A/P AT Fernandez v Sistem Penerbangan Malaysia & Ors [2005] 3 MLJ 681, the Federal Court agreeing with the Court of Appeal held:• A collective agreement taken cognizance of by the Industrial Court is

only enforceable as an Award of the Industrial Court and binding on the parties to it. Constitutional law does not extend its substantive or procedural provisions to infringements of an individual’s legal right by another individual.

• Due to the fact that the employee was employed as a Grade B category flight stewardess, her right to equality was measured against the rights of the other flight stewardesses in the same category. Further, the employee chose to be appointed as a flight stewardess and agreed to be bound by the collective agreement.

• The FC did not address the issue of whether the Applicant’s right to work and the right to continued employment during her pregnancy; and on the applicability of CEDAW.

Cases in Malaysia In Noorfadilla bt Ahmad Saikin bin Basirun & Ors [2012] 1 MLJ 832

Facts : • the employee applied for and obtained employment as a Guru Sandaran

Tidak Terlatih (‘GSTT’), which she received a placement memo for. At a briefing before her posting, the Plaintiff was questioned as to whether she was pregnant. When she admitted that she was 3 months pregnant, her placement memo was withdrawn.

• The Plaintiff demanded her employment as GSTT be restored but received no written reply and as such, filed a claim at the High Court against the relevant Education Officers, the State Director of the Education, the Ministry of Education and the Government of Malaysia.

Cases in Malaysia In Noorfadilla bt Ahmad Saikin bin Basirun & Ors [2012] 1 MLJ 832

Facts :

• Her complaint was that the GSTT post was revoked and withdrawn on the sole ground that she was pregnant and this was tantamount to discrimination, against Art 8(3) of the Federal Consitution.

Cases in Malaysia Noorfadilla bt Ahmad Saikin bin Basirun & Ors [2012] 1 MLJ 832, the High Court held that :

• the word 'gender' was incorporated into Art 8(2) of the Federal Constitution in order to comply with Malaysia's obligation under the Convention on the Elimination of all Form of Discrimination against Women (CEDAW). It is settled law that the CEDAW has the force of law. In interpreting Art 8(2) of the FederalConstitution it was the court's duty to take into account the government's commitment at an international level.

• It was a basic biological fact that only women had the capacity to become pregnant and thus discrimination on the basis of pregnancy was a form of gender discrimination. Hence it was found that the plaintiff should have been entitled to be employed…even if she was pregnant.

Cases in Malaysia In Air Asia Bhd v Rafizah Shima bt Mohamed Aris [2014] 5 MLJ 318 :

Facts : The employee signed an agreement with Air Asia which contained a clause forbidding her from falling pregnant during the duration of a 4 year aircraft maintenance engineering training programme she was chosen to undergo and if she fell pregnant, it would be a repudiation of the agreement.

Air Asia terminated the agreement and her employment when it discovered that the employee became pregnant during the final year of the course. The employee applied to the High Court to declare void the clause in breach of Arts 8 and 11 of the Federal Constitution and CEDAW.

Cases in Malaysia Air Asia Bhd v Rafizah Shima bt Mohamed Aris

The High Court in allowing her application, held:

• the CEDAW has the force of law and is binding on its member states, including Malaysia.

• the clause of the agreement is illegal, null and void as it had the effect of discriminating against the employee’s rights as married women and contravenes Art 8 of the Federal Constitution and CEDAW.

Cases in Malaysia

Air Asia Bhd v Rafizah Shima bt Mohamed Aris

Court of Appeal – in allowing Air Asia’s appeal, held :

• All clauses in the agreement, especially Cl 5.1(4), did not restrain marriage and/or prohibit pregnancy if the employee completed the training programme in the manner stipulated in the agreement. Therefore, the Clauses were not discriminatory in nature.

Cases in Malaysia Air Asia Bhd v Rafizah Shima bt Mohamed Aris (cont’) Court of Appeal :

• CEDAW did not have the force of law in Malaysia because the same was not enacted as local legislation. For a treaty to be operative and enforceable in Malaysia, it required legislation by Parliament. Without express incorporation into domestic law by an Act of Parliament following ratification of CEDAW, the provisions of the international obligations in CEDAW did not have any binding effect. Ratification alone did not make the provisions of treaties applicable for municipal law.

• Also, in Malaysia, the Federal Constitution was silent as to the primacy of international law or municipal law or vice versa. If there was a conflict, the general rule was that existing municipal law would prevail.

Gender Discrimination in the UK

The relevant legislation in the UK is the Equality Act 2010 (“EA 2010”). The EA 2010 prohibits discrimination against certain ‘protected characteristics’ as follows (s. 4) :-

I. ageII. being or becoming a transsexual personIII. being married or in a civil partnershipIV. being pregnant or having a childV. disabilityVI. race including colour, nationality, ethnic or national originVII.religion, belief or lack of religion/beliefVIII.sexIX. sexual orientation

Protection is afforded in these situations :

I. at workII. in educationIII. as a consumerIV. when using public servicesV. when buying or renting propertyVI. as a member or guest of a private club or association


Discrimination can come in one of the following forms :

1. direct discrimination (s. 13) - treating someone with a protected characteristic less favourably than others

2. indirect discrimination (s. 19) - putting rules or arrangements in place that apply to everyone, but that put someone with a protected characteristic at an unfair disadvantage

3. harassment (s. 26) - unwanted behaviour linked to a protected characteristic that violates someone’s dignity or creates an offensive environment for them

4. victimisation (s. 27) - treating someone unfairly because they’ve complained about discrimination or harassment


The Way Forward in Malaysia “In the context of gender discrimination, the recognition and protection of women’s rights by the law remains vital. While the right to equality and non-discrimination is enshrined within the Federal Constitution under art 8(1) and (2), its efficacy is called into question when women’s rights are not enforced as such due to the severe limitations that affect its interpretation…

Unless the courts are willing to take up the challenge and advance the cause of gender justice by outlawing discriminatory laws, practices and policies by expanding the scope of the Federal Constitution, then the true value of these rights will remain as nothing more than the paper they are written on. Judicial activism and interpretation ‘…amplified the attempt by the courts to ensure the relevancy of the constitution to best serve the society it has been created for’.

The Way Forward in Malaysia

The other alternative is legislative intervention. As the Federal Court noted, ‘Unless and until the Employment Act 1955 is amended to expressly prohibit any term and condition of employment that requires flight stewardesses to resign upon becoming pregnant…’ clauses such as the one in the Beatrice Fernandez case remain valid and enforceable.”

Gender Discrimination in Employment – How far does Art 8 of the Federal Consitution guarantee gender equality? [2006] 6 MLJ xliv, Jashpal Kaur Bhatt.

Sexual Harassment & Gender Discrimination

Labour Law Conference10 April 2015


THANK YOU!

Janice Anne Leo