Introduction
In Malaysia, the 2 key legislations which provide framework in addressing complaints on sexual harassment in the context of workplace are:-
- •Employment Act 1955 (“EA 1955”)
- •Anti-Sexual Harassment Act 2022 (“ASHA 2022”)
Pursuant to Section 2 of EA 1955, “sexual harassment” is defined to mean any unwanted conduct of a sexual nature, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is offensive or humiliating or is a threat to his well-being, arising out of and in the course of his employment.
On the other hand, the definition of sexual harassment in ASHA 2022 is similar to that as defined in EA 1955, albeit in much broader sense as ASHA 2022 does not limit itself to the context of workplace.
While both aim to protect victims and penalize harassers, each presents different procedures and remedies. Understanding the distinctions between these two legal frameworks can help individuals or victims decide which avenue could best achieve their desired outcome.
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(A) Under the Employment Act 1955
The EA 1955 makes it mandatory for employers to inquire into, investigate and make findings on all sexual harassment complaints involving their employees. In this regard, the mechanism under the EA 1955 can largely be viewed as employer-led investigation.
The framework under the EA 1955 lays down the procedures to handle sexual harassment complaints, and implications for failure to comply with the statutory provisions.
An employer may refuse to inquire further into the complaint by giving reasons in writing for the refusal within 30 days of the complaint, if-
- •The complaint had previously been inquired into but was not proven; or
- •The complaint is frivolous, vexatious, or is not made in good faith.
If, upon inquiry, the employer concludes that there is merit to the complaint and is satisfied that sexual harassment has been proven, the employer may implement any of the following disciplinary actions, whichever is most appropriate in the given circumstance:-
- •Dismissing the employee without notice;
- •Downgrading the employee; or
- •Imposing any other lesser punishment as the employer deems just and fit, and where the punishment of suspension without wages is imposed, it shall not exceed a period of 2 weeks.
A complainant dissatisfied with the refusal of the employer to inquire into the complaint may refer the matter to the Director General of Labour (‘DGL’) whereupon the DGL may:-
- •Direct the employer to conduct an inquiry if the DGL is of the opinion that the matter ought to be inquired into; or
- •Agree with the employer’s decision not to conduct the inquiry and no further action will be taken.
The DGL can intervene and assume the role of inquiring into a complaint and make a finding if the employer neglects, fails or refuses to act. Failure on part of the employer to comply with obligations under the EA 1955 constitutes an offence which, upon conviction, may result in a fine up to RM50,000.00.
A key characteristic of the Employment Act route is its relative informality and speed. Investigations often mirror a domestic inquiry, allowing the employer to resolve the matter internally. Much of the process remains within company walls to preserve workplace harmony, and it could avoid unnecessary attention or public scrutiny for both parties.
However, if the perpetrator/harasser holds a senior or managerial position, there may be a real risk of imbalance in power dynamic which would compromise the investigation’s objectivity, leading to a bias outcome.
Therefore, the procedures under the Employment Act can be an effective choice if:-
- •Swift redress within the organization is desirable;
- •There is no risk of bias, or imbalance in power dynamic which could compromise the investigation process’ or
- •The victim will be sufficiently content with internal disciplinary action to be taken against perpetrator/harasser if the complaint is proven.
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(B) Anti-Sexual Harassment Act 2022
The ASHA 2022 establishes an independent Tribunal to hear complaints, creating a structured and impartial forum that helps mitigate the risk of bias sometimes seen in employer-led investigations particularly where power imbalances exist.
Under ASHA 2022, the victim or complainant of sexual harassment must initiate the proceeding at the Tribunal, thereby playing a more active role in establishing the complaint, presenting the relevant evidence, and testifying in trial before the Tribunal. While representation by lawyer is generally limited, it is typically allowed if the case involves complex legal issues.
Once the complaint is lodged, the Tribunal will set a hearing date and aims to deliver a decision within 60 days from the first day of hearing. Each Tribunal sitting consists of 3 panel members, at least 1 of whom is female, and hearings are closed to the public, reflecting ASHA 2022’s commitment to privacy and confidentiality.
The Tribunal’s proceedings go beyond the conventional internal disciplinary approach, allowing for wider remedies which the Tribunal is empowered to grant, such as:-
- •A formal statement of apology to be issued by the perpetrator, in the manner as sought by the victim and as granted by the Tribunal;
- •Monetary compensation or damages up to RM250,000.00 to be paid by the perpetrator to the victim;
- •An order compelling either party to attend any programme as the Tribunal thinks necessary; or
- •Any ancillary or consequential order or relief which the Tribunal deems fit and just to give effect to the Award.
A Tribunal Award must be complied with within 30 days from the date of the Award, failing which will constitute an offence and is punishable with a fine, imprisonment, or both.
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(C) Choosing the Most Suitable Self-Help Avenue
Deciding which avenue better suits the victim’s circumstances depends on several considerations as follows:-
- •Desired Remedies: EA 1955 centers on disciplinary actions be taken by a company, whereas the Tribunal of ASHA 2022 can award a wider range of remedies as explained above.
- •Nature of the Harassment: If the harasser holds a position of power or there is a significant risk of bias in an employer-led investigation, pursuing a case under ASHA 2022 may provide a more impartial and independent process.
- •Time & Cost Considerations: Internal inquiries can often be completed quickly if management is responsive and cooperative. On the other hand, proceedings under ASHA 2022 are likely to be slower and could involve legal fees when service of legal practitioners is engaged.
- •Workplace Impact: Internal proceedings are generally less disruptive, especially if the parties continue working together. External proceedings, while impartial, may strain workplace relationships more significantly.
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Conclusion
EA1955 and ASHA 2022 each provide distinct mechanisms for addressing workplace harassment. Choosing the right approach depends on the victim’s specific needs, workplace dynamics, and desired outcomes.
Ultimately, a respectful and harassment-free workplace is a right every employee deserves. By understanding the key differences in terms of scope and operation between these 2 legal frameworks, affected parties can make informed decisions that uphold justice, protect workplace dignity and well-being.
About the authors
Chau Yen Shen
Principal Associate
Dispute Resolution & Employment
Halim Hong & Quek
yschau@hhq.com.my
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