Suing a sexual harasser for civil remedies? Yes.

“After mulling over the matter, we arrived at a decision to undertake some judicial activism exercise and decide that it is timely to import the tort of harassment in our legal and judicial system, with sexual harassment being part of it.”

The above passage was quoted from the Federal Court case of Mohd Ridzwan Abdul Razak v Asmah Hj Mohd Nor [2016] 6 CLJ 346 whereby the apex court of the land had recognised the tort of sexual harassment and ruled that victims of sexual harassment are able to seek civil remedies which go beyond the Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace 1999 (“the Code”) and the Employment Act 1955 (“the Act”). We will now examine the facts of this case, the decision and its impact on the development of the tort of harassment in Malaysia.

Facts

The respondent, an employee of Lembaga Tabung Haji, had lodged a complaint to the company’s chief executive officer regarding sexual harassment by her superior, the appellant. The complaint includes vulgar remarks uttered by the appellant towards the respondent, inappropriate jokes made by the appellant in front of his subordinates, profanities used in the appellant’s emails and repeated offers made by the appellant to the respondent to be his second wife. The company set up a committee to conduct an inquiry into this matter but the committee found that there was insufficient evidence to warrant a disciplinary action against the appellant. Nevertheless, the company issued a strong administrative reprimand to the appellant and eventually, his contract with the company was not renewed. The appellant later filed a civil suit against the respondent to seek for, among others, a declaration that he had not sexually harassed the respondent and that she had defamed him. The appellant sought for public apology, general and aggravated damages, interest and costs from the respondent. In her defence, the respondent particularised the sexual harassment and alleged that she had suffered under the appellant. She also counterclaimed for damages predicated on sexual harassment and claimed for general, aggravated and exemplary damages.

Decision

The High Court dismissed the appellant’s claim but instead, found in favour of the respondent and allowed her counterclaim. It was decided that the sexual harassment allegation had been established and the respondent was awarded RM100,000 as general damages and RM20,000 as aggravated damages for her suffering. On appeal, the decision of the High Court was affirmed. However, the Court of Appeal held that the cause of action was founded on the tort of intentionally causing nervous shock rather than sexual harassment. On further appeal by the appellant to the Federal Court, the High Court’s decision over the counterclaim was affirmed. The Federal Court took the opportunity to introduce the tort of harassment into our legal system, with sexual harassment being part of it.

Impact

The decision of the Federal Court case brings a positive development to our law. This decision is significant because victims of sexual harassment are now given the avenue to sue the harasser and claim for civil remedies. Prior to this case, the protection conferred by the Code and the Act are limited as the victims could not claim damages from their harassers for sexual harassment. This is especially so when the Code is merely used as a guideline for Malaysian employers to deal with sexual harassment complaints. The Code has no legal effect and does not give the victims a cause of action against the harassers. Whilst the amendment to the Act which incorporated part XVA on sexual harassment allows the victims to lodge a formal complaint to their employer for the purpose of investigating sexual harassment at workplace, unfortunately, this amendment fails to address the rights and liabilities of the victims and the harassers. In gist, there was no civil cause of action for sexual harassment before this case under the Malaysian law and the victims of sexual harassment were deprived of the right to seek civil remedies from the civil courts in Malaysia for such harassment.

The Federal Court’s decision to introduce the tort of sexual harassment as a cause of action in Malaysia came at the right time for the good of the public. In fact, the message from the Federal Court regarding sexual harassment is clear and bold:

“Sexual harassment is a very serious misconduct and in whatever form it takes, it cannot be tolerated by anyone. In whatever form it comes, it lowers the dignity and respect of the person who is harassed, let alone affecting his or her mental and emotional well-being. Perpetrators who go unpunished, will continue intimidating, humiliating and traumatizing the victims thus resulting, at least, in an unhealthy working environment.”

The Federal Court considered whether corroboration is a legal requirement in order to establish harassment. It recognised that much of such harassment invariably take place in private and thus, to demand corroboration, just because there exists some sexual favour in the complaint, will cause the harassed person to be, more often than not helpless, as most of the evidence are in the form of the words of the harasser vis-à-vis the victim. Therefore, the Federal Court concluded that there is no hard and fast rule that in a tort of sexual harassment case there must be corroboration, though like in any civil case the rule of evidence must be stringently upheld. The presiding judge, who is in an advantageous position and has the audio visual superiority, should scrutinise carefully the evidence before him and eventually arrive at a factual finding, but subject to the long-standing rule of the litigant establishing his case on the standard of probabilities.

Commentary

Based on the Federal Court’s decision in this case, the tort of sexual harassment has now been introduced into our legal and judicial system. This is indeed a positive step forward in creating a safer working environment and hopefully, it will help to deter harassers from committing any act of harassment in the future.

If one were to critically analyse the Federal Court’s decision, it is unclear as to how the judges decided that there was a sexual harassment. The essential elements to constitute the tort of sexual harassment were not clearly stated. Whilst references were made to the Code for the definition of “sexual harassment”, the Federal Court admitted that the Code is only a guideline and has no statutory force. It is worthwhile to note that the Federal Court referred to the definition of “sexual harassment” in section 2 of the Act and stated that it satisfies the three main elements of sexual harassment, namely: (a) the occurrence of conduct that is sexual in nature; (b) the conduct being unwanted; and (c) the conduct is perceived as threatening the victim’s ability to perform her job. Nevertheless, the definition of “sexual harassment” in the Code and the Act appears to be confined to the context of the workplace of the victim.

In any event, the Federal Court recorded its agreement with the United Kingdom Supreme Court case of Hayes v. Willoughby¹ which defines “sexual harassment” as “a persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated and does cause that person alarm, fear or distress”.

However, there was no further elaboration by the Federal Court as to the extent of unreasonableness and/or oppressiveness of the alleged conduct that could give rise to this cause of action. This will bring us to the next question: is the tort of sexual harassment founded upon a subjective test or an objective test (i.e. a reasonable man test) or a combination of both? A friendly hug may be viewed as uncomfortable by some but not by others as different people may have different level of sensitivity in perceiving certain act. Due to the lack of clarification in this decision, legal practitioners representing either the victim or the alleged harasser in future cases may face difficulties in establishing the elements of the tort of sexual harassment or defending against such claim.

Despite the fact that our judges have an enormous role in shaping the law in our country, one must not forget that the Parliament has the power to legislate and pass a bill to govern the offence of sexual harassment. Instead of relying solely on the judiciary to develop the law (which takes time and depends on the facts of each case), it is opined that the Parliament should take proactive steps to draft and table a bill on the law of sexual harassment. Other countries have enacted their own legislation prohibiting sexual harassment, such as the United Kingdom with the Protection from Harassment Act 1997 and India with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013. In fact, as far back as 2001, the Joint Action Group against Violence against Women (J.A.G) comprising of various non-governmental organisations in support of women’s rights has been lobbying for a sexual harassment law in Malaysia and had even submitted a comprehensive proposed Sexual Harassment Bill for the consideration of the government² but no further step has been taken by the Parliament to legislate sexual harassment in view of the limited amendment to the Act in 2012 which does not cover civil remedies.

The proposed Sexual Harassment Bill has succinctly stated that “Sexual harassment is a problem that plagues the work place. It has been publicly recognised as a serious offence that violates a person’s dignity, creating an intimidating and hostile environment, not only to the affected parties, but potentially to others who may witness or be aware of the harassment”. While it is to be hoped that the Federal Court ruling sets a precedent in which victims of sexual harassment are able to initiate legal action against their harassers to seek for civil remedies, the Parliament ought to take one step further in recognizing the seriousness of this offence by enacting a legislation against sexual harassment.

Lim May Fenn
Senior Associate

Chen Mei Quin
Associate

Should you have any queries on the above or for more information on Tay & Partners Employment & Industrial Relations Practice, please do not hesitate to get in touch with the following:

Leonard Yeoh
Partner, Head of Dispute Resolution
+603 2050 1973
leonard.yeoh@taypartners.com.my

Lim May Fenn
Senior Associate
+603 2050 1954
mayfenn.lim@taypartners.com.my