Sexual Harassment – Whether there is a valid cause of action for a civil claim on the grounds of sexual harassment under the existing laws of Malaysia.

Mohd Ridzwan Abdul Razak v. Asmah Hj Mohd Nor [2016] 6 CLJ 346 FC

• The appellant was the General Manager of the Risk Management Department in Lembaga Tabung Haji (the “Company”) whilst the respondent held the position of senior manager in the department. The respondent reported directly to the appellant.
• On 29 September 2009, the respondent lodged a complaint against the appellant claiming to have been sexually harrased by the appellant.
• Upon inquiry, it was found that there was insufficient evidence to warrant disciplinary action to be taken against the appellant.
• The appellant claimed the complaint to be defamatory affecting his reputation as a Muslim and a member of the senior management of the company leading to the non-renewal of his contract. The appellant sued the Complainant for defamation.
• In the respondent’s defense and counterclaim, she particularised the sexual harrasment and further alleged that she had suffere emotional and mental stress and trauma.
• The High Court dismissed the appellant’s claim for defamation and allowed the Complainant’s claim for sexual harrasment. On appeal,the Court of Appeal affirmed the High Court’s decision.
• The current question before the Federal Court is whether there is a valid cause of action for a civil claim on the grounds of sexual harassment under the existing laws of Malaysia.

• The Federal Court held that there was a valid civil claim for sexual harassment.
• The Federal Court is of the view that the respondents counterclaim must be affirmed based on the tort of sexual harassment.
• Sexual harassment is a very serious misconduct and in whatever form it takes, cannot be tolerated by anyone. The recognisable hallmarks of sexual harassment are that they are unwelcomed, taking the form of verbal or even physical.
• In this case, the ingredients of sexual harassment are present in abundance, namely the existence of a persistent and deliberate course of unreasonable and oppresive conduct targed at another person amounting to cause alarm, fear and distress to that person.
• Hence, the vulgar and sexually explicit words complained of by the respondent clearly would be sexual harassment, emanating from verbal harassment.
• The standard of proof in civil cases has traditionally been on a balance of probabilities, a standard that is lower than that of criminal cases of proving beyond reasonable doubt.
• To demand corroboration will cause the harassed person to be more helpless, as most of the evidence will consist of words of the harasser to the victim.
• While the court is wary of vindictive complaints and its debilitating effects, the filing of a complaint by a victim means that she equally suffers potential censure.
• An unsuccesful complaint would inevitably expose her to public octracisation, creating great anxiety and discomfort for her at workplace.
• In addition, the judges are in an advantageous position to carefully scrutinize the evidence before them and arrive at a factual finding based on the facts adduced before them.
• Thus, in a sexual harassment case, there is no hard and fast rule that there must be corroboration, though like in any civil case the rule of evidence must be stringently upheld.