First Decision of the Tribunal for Anti-Sexual Harassment under the Anti-Sexual Harassment Act 2022

‍INTRODUCTION

On 12 July 2024, the Women, Family, and Community Development Ministry announced in a media statement that the Tribunal for Anti-Sexual Harassment (“the Tribunal”) has issued an award in respect of the first complaint received by the Tribunal.

A female employee claimed that her male employer had physically sexually harassed her. After reviewing the evidence, the Tribunal concluded that the complainant had substantiated her case. Consequently, the Tribunal ordered the employer to issue a statement of apology to the complainant, as she had requested. Notably, the award was granted within 60 days from the date of the first hearing.

The Tribunal, established under section 3 of the Anti-Sexual Harassment Act 2022 (“ASHA”), aims to provide a swift, affordable, and straightforward mechanism for victims to seek redress for sexual harassment.

BACKGROUND

The Anti-Sexual Harassment Bill was first tabled in Parliament in December 2021. The Bill was passed by the Dewan Rakyat (House of Representatives) on 20 July 2022.

The ASHA was then gazetted on 18 October 2022. On 28 March 2023, sections 1, 2, 24, 25 and 26 of the ASHA came into effect.[1] These provisions deal with, amongst others, the definition of sexual harassment, and the function and powers of the Ministry of Women, Family and Community Development to formulate policy and issue guidelines relating to sexual harassment and to make the necessary regulations in respect of the Tribunal for Anti-Sexual Harassment (Tribunal).

The rest of the provisions i.e. sections 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 27 came into effect on 8 March 2024.[2] These provisions cover, among others, the establishment of the Tribunal, its jurisdiction and procedures for the proceedings.

SCOPE OF THE LEGISLATION

Unlike the Employment Act 1955 which only covers workplace-related sexual harassment complaints (those filed by an employee against another employee or their employer, and by an employer against an employee), the ASHA is not limited to sexual harassment in the workplace context.

Section 2 of the ASHA defines “sexual harassment” broadly as “any unwanted conduct of a sexual nature, in any form, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is reasonably offensive or humiliating or is a threat to his well-being”.

Further, the Preamble to the AHSA states that the purpose of the Act is to provide for a right of redress for any person who has been sexually harassed, the establishment of the Tribunal, to raise awareness and to prevent the occurrence of sexual harassment, and to provide for related matters.

THE TRIBUNAL FOR ANTI-SEXUAL HARASSMENT

Scope of the ASHA and jurisdiction of Tribunal

The ASHA provides for the setting up of the Tribunal, which will comprise of a President and a Deputy President to be appointed from amongst the members of the Judicial and Legal Service. Further, there shall be at least five other members who are legally trained and non-legally trained. These include current or past members of the Judicial and Legal Service, advocates and solicitors with at least seven years' standing and individuals who have knowledge of, or practical experience relating to, sexual harassment.

The Tribunal shall have jurisdiction to hear and determine any complaint of sexual harassment made by any person. Issues in a sexual harassment complaint filed before the Tribunal may not be the subject of proceedings between the same parties in any court, except in certain circumstances, including where the proceedings before the court were commenced before the complaint of sexual harassment was lodged with the Tribunal and where the complaint involves criminal conduct.

Conduct of the proceedings

Section 10 provides that any person may lodge a complaint of sexual harassment in a prescribed form and with a prescribed fee. The prescribed form is Form 1 of the First Schedule to the Anti-Sexual Harassment (Tribunal For Anti-Sexual Harassment) Regulations 2024 and the prescribed fee is RM30.

Every party to the proceedings shall be entitled to attend and be heard, but the hearings are closed to the public. It is also important to note that they may not be represented by a lawyer in the proceedings unless the matter involves complex issues of law.

Reliefs which the Tribunal can order

The Tribunal must make its award without delay and, where practicable, within 60 days from the first day the hearing commences.[3] Further, the Tribunal shall state in writing its reasons for the award or dismissal of the complaint, together with finding of facts and recommendations made by the Tribunal in the proceedings.[4]

Should the Tribunal find in favour of the complainant, the Tribunal may order the respondent to[5]:

1. Issue a statement of apology to the complainant (including to publish the apology if the act was carried out in public);
2. Pay compensation or damages not exceeding RM250,000 for any loss or damage suffered by the complainant; or
3. Attend any programme as the Tribunal thinks necessary.

Further, the Tribunal may give any such ancillary or consequential orders or relief as may be necessary to give effect to any order made by the Tribunal.

The Tribunal may dismiss a complaint of sexual harassment which the Tribunal considers to be frivolous or vexatious.

The Tribunal has wide powers to administer the proceedings, including to:

1. Order the preservation and interim custody of any evidence; and
2. Summon any person to attend the proceedings to give evidence or to produce any document or record in their possession or otherwise to assist the Tribunal.

COMMENTS

Significance of the first award for victims of sexual harassment

The award is significant as it is the first issued under the Act since the Tribunal's establishment. Now operational, the Tribunal offers victims of sexual harassment (regardless of gender) a more affordable and faster way to seek justice. In this case, the Tribunal ordered the employer to apologize to the complainant, as requested. It is also notable that the award was granted within 60 days from the date of the first hearing. However, as stated above, the ASHA also empowers the Tribunal to make other orders, such as requiring the respondent to publish an apology if the harassment was public, pay compensation or damages up to RM250,000, and mandate participation in relevant programs. The swiftness in which the award was granted is certainly something to be commended and it is the hope that this avenue can be a less-costly way for victims of sexual harassment to seek their justice.

How the ASHA affects employers

From the perspective of employers, it is important to note that while the ASHA does not specifically deal with sexual harassment in the employment context, it will have significant implications on employers if the conduct relates to conduct at work (between employees or between an employee and a third party) or if it is filed by an employee against another employee (relating to conduct at or outside of work).

Where the complaint relates to conduct at work or relates to conduct between two employees, it is possible that an order be issued to the employer preserve evidence, or to summon the employer or another employee to attend the proceedings. Additionally, by the wording of the exclusionary provision in the ASHA, employees are not prevented from filing a claim before the Tribunal even if they have already filed an internal grievance complaint with the employer, and regardless of the outcome of any internal investigation conducted by the employer.

As such, it is vital for employers to implement strong and well-written policies for addressing sexual harassment at work. This includes maintaining proper records of grievances and investigations and considering the governance implications of complaints related to workplace conduct or actions by an employee.

‍This article is written by  Raja Nadhil Aqran (Partner). It only contains general information. It does not constitute legal advice nor an expression of legal opinion and should not be relied upon as such.

If you would like to fix an appointment with one of our lawyers for a consultation, contact us at info@aqranvijandran.com.

[1] Appointment Of Date Of Coming Into Operation [PU(B) 113/2023]

[2] Appointment Of Date Of Coming Into Operation [PU(B) 77/2024]

[3] Section 19(1) of the ASHA.

[4] Section 19(2) of the ASHA.

[5] Section 20(1) of the ASHA.