Sexual harassment victims can now seek civil remedy to sue perpetrators

The Federal Court, in a landmark ruling today, gives room for employees who are sexually harassed at their work place to file a civil suit to claim damages against the perpetrators.

Justice Tan Sri Suriyadi Halim Omar said this being that sexual harassment is a very serious misconduct and in whatever form it takes, could not be tolerated by anyone.

In dismissing an appeal by former Tabung Haji general manager (Risk Management) Mohd Ridzwan Abdul Razak, Justice Suriyadi said the act lowers the dignity and respect of the victim and affected his or her mental and emotional well-being.

"Perpetrators who go unpunished will continue intimidating, humiliating and traumatising the victims, thus resulting, at least, in an unhealthy working environment," he said in his 42-page judgment.

He said after perusing the case, the court agreed with Asmah Mohd Nor (the respondent and victim in the case) that her cause of action for sexual harassment was adequately pleaded, supported further by the particulars of the harassment.

Justice Suriyadi said there was ample evidence to show that the appellant (Mohd Ridzwan) had uttered vulgar and sexually explicit rude remarks, either addressed directly to the respondent (Asmah) or in her presence, and knowing that she would hear it.

Mohd Ridzwan had appealed against the Court of Appeal's dismissal of his appeal over the High Court finding that he had harassed ex-colleague Asmah.

The High Court on Sept 24, 2012 rejected Mohd Ridzwan's suit against Asmah for a declaration that he had not sexually harassed her and he had been defamed by her.

The High Court entered judgment for Asmah on her counterclaim and awarded her RM120,000 in general and aggravated damages for suffering major depression.

At today's proceedings, a five-man panel chaired by Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinudin, who sat with Federal Court judges Justice Suriyadi, Tan Sri Ahmad Maarop, Datuk Ramly Ali and Datuk Balia Yusof Wahi ordered Mohd Ridzwan to pay RM20,000 in costs to Asmah, who was present in court.

This is the first case involving a sexual harassment victim at a workplace who sought remedy from the civil court.

Justice Suriyadi said it was evident that there had been no reported case pertaining to the Employment Act 1955 in the country where an individual victim had claimed civil remedy from an alleged perpetrator for sexual harassment.

He said the Malaysian Code of Practice on the Prevention and Education of Sexual Harassment in the workplace 1999 (1999 Practice Code), on the other hand, was merely used as a guideline for Malaysian employers and was without any legal force.

He said the panel admitted that the 1999 Practice Code merely represented a collective guidelines on what sexual harassment was and its aim was to provide guidelines to employers on the establishment of in-house mechanisms at the enterprise level to prevent and eradicate sexual harassment in the workplace.

The code did not provide any other avenue other than the workplace for the victim, he added.

He also said that the recent amendment to the Malaysian Employment Act 1955 only imposed a duty on employers to adequately deal with sexual harassment complaints at their workplace.

The judge said after mulling over the matter, the panel arrived at a decision to undertake some judicial activism exercise and decided that it was timely to import the tort of harassment into our legal and judicial system, with

sexual harassment being part of it.

Justice Suriyadi said tort law in the country was still very much based on English common law principles.

"Until the Employment (Amendment) Act 2012 came into force on April 1, 2012, there was no statutory provisions at all on sexual harassment in Malaysia," he said.

He said that in Malaysia, the tort of sexual harassment at the time of the filing of the action did not exist, nor any legislation had been promulgated on the law of sexual harassment prior to the Employment (Amendment) Act 2012 which came into force on April 1, 2012.

"This amendment provides for the manner in which employers should deal with complaints of sexual harassment at the place of work, it puts the employer to task. This amendment unfortunately did not address the rights and liabilities of the harasser and the victim," he added.

Prior to the amendment, he said the 1999 Practice Code was already in place and its shortcoming was it did not give rise to a cause of action for the victim against the harasser.

The panel also underlined definition of sexual harassment, taking the form of verbal and even physical, which include sexual innuendos, comments and remarks, suggestive, obscene or insulting sounds, implied sexual threats, leering, ogling, displaying offensive pictures and making obscene gestures.