The Anti-Sexual Harassment Act 2022 (Hereinafter referred to as “ASHA 2022”) is an attempt by the Malaysian government to further raise awareness and solve the sexual harassment issues that exists in today’s society. The ASHA 2022 has been gazetted in 18^th of October 2022. Pending the establishment of tribunal under the Act, part of the Act has come into force on the 28^th of March 2023.

Under Section 2 of the ASHA 2022, “Sexual Harassment” is defined as “any unwanted conduct of a sexual nature, in any form, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is reasonably offensive or humiliating or is a threat to his well-being”.

Though the given definition allows us to have an insight to what amounts to a sexual harassment, there are other consistent sources of laws and guidelines which would further assist in explaining on what could amount to a sexual harassment. They are as follows:

The Penal Code (Criminal Law)
Section 354 of the Penal Code (Molestation):
“Whoever assaults or uses criminal force to any person, intending to outrage or knowing it to be likely that he will thereby outrage the modesty of that person, shall be punished with imprisonment for a term which may extend to ten years or with fine or with whipping or with any two of such punishments.”
           
Section 355 of the Penal Code:
“Whoever assaults or uses criminal force to any person, intending thereby to dishonour that person, otherwise than on grave and sudden provocation given by that person, shall be punished with imprisonment for a term which may extend to two years or with fine or with both.”

Section 377D of the Penal Code (Outrages on decency):
“Any person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, shall be punished with imprisonment for a term which may extend to two years.”
Section 509 of the Penal Code (Word or gesture intended to insult the modesty of a person.
“Whoever, intending to insult the modesty of any person, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen by such person, or intrudes upon the privacy of such person, shall be punished with imprisonment for a term which may extend to five years or with fine or with both.”

Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace (“The Code”)

According to The Code, it encompasses various conducts of sexual nature which can manifest themselves in five possible forms of sexual harassments. They are as below: –

Verbal harassment: e.g. Offensive or suggestive remarks, comments, jokes, jesting, kidding, sounds, questioning.
 
Non-verbal/gestural harassment: e.g. leering or ogling with suggestive overtones, licking lips or holding or eating food provocatively, hand signal or sign language denoting sexual activity, persistent flirting
 
Visual harassment: e.g. showing pornographic materials, drawing sex-based sketches or writing sex-based letters, sexual exposure.
 
Psychological harassment: e.g. repeated unwanted social invitations, relentless proposals for dates or physical intimacy
 
Physical harassment: e.g. inappropriate touching, patting, pinching, stroking, brushing up against the body, hugging, kissing, fondling, sexual assault.
 
Communications and Multimedia Act 1998 (“CMA 1998”)
The law under the CMA 1998 has also provided a form of protection and example of what amounts to a sexual harassment in the context of an online network communication scenario.

Section 233 of the Communications and Multimedia Act 1998 (Improper use of network facilities or network service, etc.)
“ (1) A person who—
 
(a) by means of any network facilities or network service or applications service knowingly—
(i) makes, creates or solicits; and
(ii) initiates the transmission of,
 
 any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person; or
 
(b) initiates a communication using any applications service, whether continuously, repeatedly or otherwise, during which communication may or may not ensue, with or without disclosing his identity and with intent to annoy, abuse, threaten or harass any person at any number or electronic address
 
commits an offence.”
 
As per the examples and definitions laid above, it can be construed that the scope for sexual harassment can be wide to accommodate the different scenarios when an unwanted conduct of a sexual nature occurs. Hence it is advisable for the employers to be more proactive in looking after the well-being of their working environment for the employees in a sexual harassment context.

The main significant point of the ASHA 2022 is on the establishment of the “Tribunal for Anti-Sexual Harassment” (“Tribunal”) as seen in Section 3 of the ASHA 2022.

The jurisdiction of the Tribunal according to Section 7 of the ASHA 2022, states that the Tribunal has the power to hear and determine any complaint of sexual harassment made by any persons. As such, this would mean to include anyone who is working within the corporation where they have the choice to file for a complaint against the employers in involving the Tribunal itself.

The sittings of the Tribunal upon having a case before them, according to Section 12 of the ASHA 2022, will be by a panel of three (3) members of the Tribunal who are either the President or the Deputy President of the members or the Tribunal, together with 2 more members of the Tribunal.

In accordance to the vested powers of the Tribunal in Section 19 and Section 20 of the ASHA 2022, it includes that the Tribunal has the power to make an order for a respondent to pay compensation or damages not exceeding RM250,000.00 and other order as the Tribunal deems fit. Though the Tribunal has the powers under Section 17 of the ASHA 2022 to make a reference to the Judges in High Court when there is a question of law arising, the Tribunal’s award to the parties is final and binding as stated in Section 22 of the ASHA 2022.

As such, any persons in the public including the employees within the corporation has now an additional route to deal with sexual harassment issues which in turn, would be more protection afforded for them.

The Tribunal consists of the members appointed by the Ministry of Women, Family and Community Development where they would hear and determine the case that is brought by the complainant against the respondent. As such, the Tribunal would be able to give an award (decision) that is final and binding to the parties as discussed above.

Subsequently if there is any breach on the part of the respondent, the respondent would be liable to comply with the order(s) as stated in Section 20 of the ASHA 2022 as per below:
 
(i) Order for the respondent to issue a statement of apology to the complainant as specified in the order;
 
(ii) If the complaint related to any act of sexual harassment which was carried out in public, an order for the respondent to publish a statement of apology to the complainant in any manner as specified in the order;
 
(iii) an order for the respondent to pay any compensation or damages not exceeding two hundred and fifty thousand ringgit (RM250,000.00) for any loss or damage suffered by the complainant in respect of the act of sexual harassment; or
 
(iv) an order for the parties to attend any programme as the Tribunal thinks necessary.
 
Though the award is final and binding, the Section 23 of the ASHA 2022 would still allow any party in the proceedings of the Tribunal to apply to the High Court to challenge the award on the grounds of serious irregularity.

Under the Employment Act 1955 (“EA 1955”), corporations may be liable to claims from employees who suffers from sexual harassments in the workplace.

The latest update for the EA 1955 was made on the 1^st of January 2023 where it is currently in force. There have been new amended provisions and amongst other, the sexual harassment provisions have been updated as well which is the focus of today’s discussion.

The update that the EA 1955 on sexual harassment includes that the employers shall at all times, exhibit conspicuously at the place of employment, a notice to raise awareness on sexual harassment as stated in Section 81H of the EA 1955.

According to the Section 81F of the EA 1955, if the employer had failed to further inquire into the sexual harassment complaints that has been brought to the attention of the employer at the work place, the employer would be liable to a fine with an increased cap from RM10,000.00 to RM50,000.00 upon conviction.

In conjunction with ASHA 2022, it is more relevant to a corporation, due to the additional exposure of claims, where an employee has another route to take an action against the corporation via the ASHA 2022.

Employers are advised to further ensure that the working environment is safe for its employees where the chances of facing a sexual harassment issue is to the bare minimum. This is mainly due to the fact that in Tort Law, the employers owe a duty of care towards the well-being of the employees. As such, the well-being of the employees includes the assurance that the working environment is free from any form of sexual harassment.

The employers should also be aware of the potential liability of being vicariously liable should an employee decides to take an action against the employer on the grounds that the employee complainant has been sexually harassed by his/her colleague that is working in the same corporation.

According to the Indian case of ISG Novasoft Technologies Ltd v Gayathri Balaswamy [2014], the judges in this case has decided in favour of the complainant when a suit was filed against the employer on the grounds that the employer in this case has been vicariously liable for being negligent in failing to set up an internal complaints committee for the complainant to deal with the sexual harassment situation.

The employers are further advised that in the event of a failure to act in upholding their duty of care in ensuring the workplace is a safe environment for work, they will be exposed to liabilities such as imprisonment of not more than one year as laid in Section 233(3) of the CMA 1998 and/or compensating for damages up to RM250,000.00 under the new law of Section 20 of the ASHA 2022.

In August 1999, the Human Resources Ministry launched a Code of Practice on the Prevention and Eradication on Sexual Harassment in the Workplace (“the Code”) which would encourage employers to adopt the Code of Practice against sexual harassment and an internal mechanism to prevent sexual harassment at the workplace.

As such, the employers could take the steps as per below to further prevent themselves from being liable in a Tribunal dispute: –
 
Setting Policy: Draft a policy statement that prohibits sexual harassment in the organisation where it will be in a form of a message from the top management to ensure compliance towards the prohibition of sexual harassment.
 
Creating Awareness: Formulate a clear definition of sexual harassment so to allow the people within the corporations to be aware of the types of unwelcoming attitudes. This includes undertaking promotional and educational programmes to explain the corporation’s policy on sexual harassment and to raise awareness of sexual harassment and its adverse consequences among the corporation’s employees, supervisors and managers.
 
Complaint Procedure: Make available a complaint/grievance procedure that is specially tailored to only deal with sexual harassment matters due to the sensitive and personal nature of the issue.
 
Disciplinary Actions: State the disciplinary rules and penalties against the harasser and against those who make false accusation so to ensure there is effectiveness in preventing sexual harassment in the corporation.
 
Protective and Remedial Measure: A protective and remedial measures for the victim in order to further encourage victims to report the sexual harassments.

Both the ASHA 2022 and the EA 1955 (Sexual Harassment part) shares a common goal which is to reduce the frequency of sexual harassment issues that is faced by the public. They are achieving this by way of formulating the policy and guidelines relating to the prevention and awareness of sexual harassments.

As such, corporations are kindly advised to further take on a more proactive role in ensuring that the work place is a safe working environment that is sexual harassment free, so to prevent any form of harms suffered by the employees.

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