Sexual harassment is a pervasive issue that can have severe repercussions for employees and employers alike. In Malaysia, the legal framework emphasises the responsibility of employers to prevent and address sexual harassment in the workplace. This article outlines the legal obligations of employers, best practices for establishing complaint procedures, and steps for conducting effective investigations.
1. Legal Obligations of Employers
Under Malaysian law, particularly the Employment Act 1955, employers are obligated to create a safe work environment free from sexual harassment. The Act defines sexual harassment as any unwanted conduct of a sexual nature that is offensive, humiliating, or threatening to the well-being of an individual, occurring in the context of employment. This includes verbal, non-verbal, visual, gestural, or physical actions that cause discomfort to the victim.
Key legal provisions under the Employment Act include:
Section 81B: Mandates employers to conduct an inquiry into any sexual harassment complaints made by employees. If an employer refuses to conduct an inquiry, they must inform the complainant in writing within 30 days, providing reasons for the refusal.
Section 81D: The Director General of Labour has the authority to instruct employers to conduct investigations into sexual harassment complaints if deemed necessary.
Employers who fail to comply with these requirements may face penalties, including fines of up to RM50,000.
2. Establishing Complaint Procedures for Sexual Harassment
A robust complaint procedure is essential for handling sexual harassment allegations effectively. Employers should establish clear, accessible, and confidential reporting mechanisms to encourage victims to come forward without fear of retaliation. Best practices for setting up complaint procedures include:
Confidentiality: Ensure that all complaints are handled discreetly to protect the privacy of the complainant and the accused.
Non-retaliation Policy: Implement a policy that protects individuals from any form of retaliation for filing a complaint.
Training and Awareness: Regularly conduct training sessions for employees and management on recognizing, preventing, and addressing sexual harassment. Display informational materials about sexual harassment policies prominently in the workplace.
3. Conducting Investigations
When a sexual harassment complaint is received, it is crucial to conduct a fair and thorough investigation. Steps to follow include:
1. Immediate Action
Upon receipt of a complaint, initiate an inquiry promptly as required under Section 81B of the Employment Act.
2. Formation of an Investigation Committee
Include members of different genders and ensure impartiality. The committee should gather evidence, interview the complainant, the accused, and any witnesses.
3. Document Findings
Keep detailed records of all interviews, evidence gathered, and actions taken. This documentation is essential for any potential legal proceedings.
4. Decision and Action
Based on the findings, decide on the appropriate disciplinary action if the harassment is proven. Possible actions include termination of employment, demotion, or other disciplinary measures.
5. Reporting to Authorities
If the complaint involves criminal elements, report the matter to the police for further investigation.
4. The Role of Corroborative Evidence
Evidence plays a crucial role in sexual harassment cases. While the Evidence Act 1950 does not strictly apply to proceedings before the Industrial Court, principles such as the need for corroborative evidence can enhance the credibility of claims. Employers should ensure that all evidence is gathered systematically and objectively to support or refute claims of harassment.
Conclusion
Preventing and addressing sexual harassment is not only a legal obligation but also a crucial aspect of maintaining a healthy and productive work environment. Employers should establish clear policies, provide training, and take immediate and appropriate action when complaints arise. Engaging a legal professional, such as a lawyer, can help ensure compliance with the law and effectively manage any incidents that occur.
For more comprehensive legal advice or assistance in drafting policies and handling complaints, consider consulting with our Managing Partner, Eugene Yeong.