Legal Update 10 of 2017

Sexual harassment at the workplace 

CASE:  Md Nor Bin Kassim v Malayan Banking Berhad

  • On 28.1.2010, MBB received a verbal report from its staff, Rohaida Binti Kamarudin (Rohaida), that Md. Nor had sexually harassed her.
  • Rohaida lodged two police reports on 1.2.2010 and 17.2.2010 respectively
  • The alleged sexual harassments referred to are as follows:
  1. Md. Nor had on several occasions sent SMSs containing inappropriate words such as “ILU” which stand for “I love you”; and 
  2. The act of Md Nor lending a book entitled “100 Rahsia Kehebatan Lelaki” to Rohaida.
  • In response to these allegations, MBB carried out investigations of the alleged misdemeanors of Md. Nor.
  • Investigations revealed that the alleged incidences were not isolated incidents and Rohaida was not the only victim of the alleged sexual harassment.
  • Apparently, there were other female staffs that suffered similar harassment but did not report these incidences for fear of being victimized by Md. Nor who was then their superior.
  • MBB had subsequently issued a suspension letter dated 9.2.2010 to Md. Nor as a result of the alleged misconduct.
  • The suspension took effect from 10.2.2010 pending the disposal of the disciplinary proceedings against Md. Nor before the Domestic Disciplinary Inquiry (“DI) of MBB.
  • The DI found Md. Nor guilty of grave misconduct and MBB dismissed MD. Nor from service with effect from 22.8.2010.
  • Dissatisfied with the dismissal, Md. Nor referred the matter to the Industrial Relations Department which in turn referred the dispute to the Minister who then referred the dispute to the Industrial Court for resolution.
  • The Industrial Court after having heard the matter found in favour of Md. Nor in that Md. Nor was held to be have been dismissed without just cause or excuse and ordered Md. Nor to be reinstated to his former position.
  • MBB then filed an application for a judicial review to the High Court seeking an order to quash the decision of the Industrial Court.

  • The High Court quashed the decision of the Industrial Court and held that the dismissal of Md. Nor was with just cause and excuse.
  • Now Md. Nor has appealed against the decision of the High Court.

DECISION: Court of Appeal Allowed Md. Nor’s Appeal 

  • The issues in this appeal were whether the alleged conduct of Md. Nor in the aforesaid incidences amounted to sexual harassment. Sexual harassment depends on how the alleged victim views the acts of the alleged perpetrator.
  • The Court of Appeal was in agreement with the findings of the Industrial Court that there was no sexual harassment especially weighing the conduct of Rohaida after the alleged incidences.
  • The conduct of Rohaida upon being given the said book did not indicate that she abhorred and loathed the whole transaction.
  • If she felt harassed by the conduct of Md. Nor, she would not have kept the book; the evidence showed that not only did she keep the book for one week and only returned the book after the Appellant requested for its return.
  • In addition, she did, in fact, discuss the contents of the book with another party.
  • With regards to the text message, the Industrial Court and Court of Appeal did not find that it amounted to sexual harassment considering the facts of this particular case.

 

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