KUALA LUMPUR, June 2 — Victims of sexual harassment can now sue their perpetrator and seek remedy under common law after the Federal Court decided today to introduce the tort of harassment, which covers sexual harassment, into the legal system.
When delivering a unanimous verdict in a sexual harassment lawsuit involving two former Lembaga Tabung Haji (LTH) employees, the five-men bench said it was time to expand the reach of laws dictating sexual harassment beyond the narrow interpretations under the Employment Act 1955 and the 1999 Practice Code.
“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 into our legal and judicial system, with sexual harassment being part of it,” the apex court bench led by Chief Judge of Malaya, Tan Sri Zulkefli Ahmad Makinudin said in the judgement.
They explained that the 1999 Practice Code acts merely as a guide for employers to establish “in-house mechanisms at the enterprise level to prevent and eradicate sexual harassment”.
The Employment (Amendment) Act 2012, which only came into play more than a decade later, expanded on the definition of sexual harassment and put into place legal ramifications for sexual harassment in the workplace.
But the apex court judges today found them to be insufficient.
“The striking feature of the 1999 Practice Code and the creation of Part XVA in the Employment Act 1955 has been that a victim is now entitled to lodge a complaint to the employer and to require the employer to investigate the complaint of sexual harassment.
“However, admittedly as said earlier, no civil cause of action per se for sexual harassment under the present Malaysian law, exists,” their judgement read.
The Federal Court also went on to define sexual harassment, referring the UK’s Lord Sumpton who called it “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”.
Women’s rights activists had previously said that the laws which deal with sexual harassment were severely limited as the victim could not claim damages and the legislations only protected those who were formally employed.
In today’s case, the Federal Court bench ruled in favour of the victim of sexual harassment and upheld a High Court’s decision to award her RM120,000 in damages.
Citing the case, the five-man bench said they introduced the tort for a number of reasons, including among others their finding that the case had been adequately ventilated at the High Court, that “the tort of sexual harassment was pleaded”, that “there was sufficient reasons to import the tort of sexual harassment” and that “the evidence was more than ample to establish this tort”.
High Court’s Justice Amelia Tee Abdullah in her decision in September 2012 on the LTH lawsuit had dismissed the appellant’s claim and allowed the victim’s counterclaim, awarding her RM120,000 in total for damages.
The appellant then appealed the case in the Court of Appeal, where a three-man panel led by Justice Datuk Zaharah Ibrahim on December last year also upheld the High Court judge’s decision.