Announcement

Beyond Physical Contact: Court's Firm Stance on Verbal and Gestural Harassment

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10 January 2025

Our Partner, Wong Keat Ching from our Employment & Industrial Relations practice group has successfully acted for PETRONAS (“the Company”) in a sexual harassment claim brought by a former employee at the Industrial Court, wherein YA Puan Eswary Maree handed down Industrial Court Award No. 1366 of 2024 dated 5.9.2024.

Brief Facts
The Claimant was employed with the Company since 2.10.1990 as a Legal Executive. The Claimant was then seconded and subsequently employed in Dubai as Senior Legal Counsel. In early 2018, complaints of alleged harassment, some of sexual nature, had been made against the Claimant during his secondment in Dubai.

After conducting a Domestic Inquiry (DI), the Company found the Claimant guilty of charges related to the Claimant’s actions of harassment.

Claimant’s Contention
(a) The Claimant alleged that the charges were without merit as not all charges in the Notice to Show Cause were pursued by the Company. In other words, the charges that were not included in the Notice of DI were without basis. The Claimant contended that the Company had a mala fide agenda against the Claimant.

(b) The Claimant contended that none of the alleged offences, if true, included any physical contact or even threat of physical contact. At best (even if true, which was denied) they may have been a matter of choice of words, or insinuation incorrectly inferred, or incorrectly perceived actions. Such determination was substantially (and probably, unfairly) open to subjectivity and was therefore not without flaws, especially when the Claimant had no sinister intention or worse still (or ironically), good intentions.

(c) The Claimant further contended that the charges preferred in the Notice of DI were defective and ought to be held void ab initio for failing to provide material particulars.

Industrial Court’s Decision
Having deliberated the arguments from both sides, the Court held the following:

(a) The Company had the discretion to decide which charges to pursue based on the evidence available from its investigation and the Claimant’s response to the show cause letter. Hence, the Company was not bound by the charges stated in the Notice to Show Cause. Suffice that the Company had discharged its burden of proof by adducing cogent evidence to prove the charges in the Notice of DI which brought about the Claimant’s dismissal. 

(b) Although the alleged offences do not include any physical contact or even threat of physical contact, the Court took such acts of harassment in the workplace seriously and upheld the charges of misconduct.

(c) It was apparent to the Court that the Claimant knew what the substance of the charges were and was able to prepare a proper defence for it. The charges were sufficiently and properly framed with the material facts required pertaining to the Claimant’s acts of misconduct against the complainants. It was not impossible for the Claimant to respond to the allegations because the material particulars of each allegation, i.e., name of complainant, location of where the allegation took place, the time period and the alleged acts of misconduct had been stated clearly in the charges.

First Complainant
Charges 1 to 4 concerned acts of workplace harassment and/or bullying towards the same female complainant who reported to the Claimant. The Claimant constantly had long hours of conversations with the First Complainant, making repeated remarks regarding why women of her age are not married, which made her feel uncomfortable. There were also utterances of harsh, unfavourable comments and unwanted gestures where the Claimant had scolded her “stupid” and/or “no brain” and had come close to the First Complainant and whispered in her ear, all which amounted to harassment.

In relation to Charges 1-4, the Company was unable to locate the First Complainant to testify in Court.  The Court had relied on the evidence of the First Complainant recorded during the DI as there was no reason to doubt the veracity of the record of the proceedings. The First Complainant’s DI evidence, albeit not under oath, was taken in the presence of the Claimant. The Claimant had ample opportunity to cross-examine her, on some occasions it is observed rather strenuously. The Court held that possibility of any prejudice to the Claimant arising from her inability to testify in the Court was remote.

Hence, in this regard, the Court had highlighted the importance of conducting a proper DI. A due inquiry properly conducted and well-documented would serve to ensure that a disciplinary authority acted fairly. The DI would also provide a reliable record for the employer to turn to when, due to the effluxion of time, witnesses became unavailable or memories had faded. In such circumstances, the employer faced with difficulties in having to prove its case before an industrial tribunal, could make extensive references to the records of the DI. 

Second Complainant
Charge 5 related to sexual harassment by way of inappropriate gestures towards the Second Complainant who held the position of Executive, Corporate Affairs Department. The Claimant had stared at the Second Complainant’s body whilst rubbing his genital area. However, the Second Complainant only told the manager and two friends about the incident when it happened, and decided to report it only three years later.

The Court held as follows:
(a) Despite only lodging a report 3 years after the incident, the Court nevertheless held that silence itself would not necessarily tantamount to consent, rather, it may stem from the complainant’s fear of the consequences. Thus, the passivity of the victim does not necessarily mean acquiescence.

(b) The Court further held that in cases of allegation of sexual harassment, corroborative evidence would not be required. It is trite law that the absence of a corroboration does not defeat a complainant’s allegation of sexual harassment.

Third Complainant
Charges 6(a) and 6(b) concerned asking inappropriate questions and acts of workplace harassment by asking the Head of Legal in Iraq how was his wife, and had mentioned to male Iraqi attendees that the Third Complainant was single and offered her to be married. The Claimant attempted to justify that the parties involved had a good working relationship and justified that these were merely discussion on exchange of information as well as collaboration between the parties.

Taking into consideration that the culture was conservative in Iraq, the Court held that the Claimant’s acts of offering the Third Complainant to be married to Iraqi men was disrespectful. Such behaviour was unacceptable and degrading to the female complainant.

Fourth Complainant
Charges 7 and 8 concerned acts of the Claimant who had made remarks insinuating that the Complainant gave personal favours. The Claimant made remarks like “If we have to liaise with…. we can send you in front because you can wink-wink and “gedik-gedik” with them”. The Claimant contended that he was merely complementing the Complainant when the remarks were made. The Court nevertheless found that given the sexual connotations in the words, “wink-wink” and “gedik-gedik”, the Claimant had indeed committed the misconduct tantamount to sexual harassment.

Dismissal was with just cause and excuse
The Court ultimately found that the 8 charges were sufficiently proven and the Claimant’s actions tantamount to a breach of the Company’s policies, especially in relation to sexual harassment. Being a legally qualified person and holding the position of a superior, the Claimant needed to be extra cautious in his actions. 

The Court also held that the Claimant’s dismissal was with just cause and excuse given the serious nature of the charges of misconduct in this case, such charges of misconduct involving sexual harassment and workplace harassment. The Claimant’s conduct destroyed the very basis of the employment relationship. The Claimant’s disregard of the lawful policies of the Company constituted a serious misconduct. The Court held that the Company’s decision to terminate the Claimant's secondment followed by his relocation back to Malaysia was done in accordance with the terms of secondment and the ultimate punishment to dismiss him was proportionate. His actions/conducts showed lack of decorum as a superior and was abusive in nature.

Key Takeaways
(a) Absence of a witness in court does not weaken the evidence recorded during a DI if the process was conducted properly. Such evidence from a well-executed DI can serve as reliable testimony in Court.

(b) Harassment, even without physical acts, constitutes a serious misconduct that cannot be tolerated by employers. Employers should take any form of workplace harassment seriously to avoid a hostile environment.

(c) Allegations of sexual harassment do not require corroborative evidence, and the victim's passivity does not equate to consent. A delay in reporting does not constitute acquiescence by the victim.

(d) Although certain charges were not included in the Notice of DI, the Court held that the Company has the discretion to decide which charges to pursue based on the evidence available from the investigations conducted and the Claimant’s response to the show cause letter. In other words, the Company is not bound by the charges stated in the Notice to Show Cause.

(e) Although certain charges were not included in the Notice of DI, the Court recognized the Company's discretion to pursue charges based on evidence available and the Claimant's response to the show cause letter. Consequently, the Company is not strictly bound by the charges originally stated in the Notice to Show Cause.

For more insight into this area of law, please contact our Partners in our Employment & Industrial Relations Practice Group:
P Jayasingam
Wong Keat Ching
Thavaselvi Pararajasingam
Teoh Alvare

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