KUALA LUMPUR, Aug 26 ― A victim of sexual harassment will find out today if she can sue her alleged perpetrator for compensation under common law, amid limited avenue for redress currently available to victims nationwide under the Employment Act 1955.
Should the Federal Court decide in favour of the victim, women’s rights activists say it would be “a big step forward” for others in similar disputes, especially as existing laws offer little relief to those seeking retribution in such cases.
“It's important to understand the problems of sexual harassment. We know it’s prevalent, but it’s very difficult to bring a claim for harassment [to court].
“I believe [today’s case] is important because it's asking the Federal Court to consider whether there is a right for victim to claim for damages under the law of tort, under common law.
“The reason why the victim has to go to common law, it is because there is no existing legislation that can fully protect women from harassment,” Sumitra Visvanathan, the executive director of Women’s Aid Organisation, told Malay Mail Online over phone.
Common law or case law are laws developed by judges through court decisions, as opposed to statutory law, which are enacted by Parliament, such as the Employment Act.
Currently, women can only file a sexual harassment complaint under Part XVa of the Employment Act, but even then, Sumithra said the law only applies for harassment in the workplace, is not comprehensive and very limited.
“One of the main weaknesses in placing sexual harassment at the workplace in the Employment Act is that it only covers people in employment.
“Women in the informal work sector are automatically excluded,” said Honey Tan of rights group Empower, in a recent email interview.
The lawyer pointed out that women make up just 38.7 per cent of the workforce, with a sizeable proportion working in the informal work sector.
Tan said the provisions in the Act exclude many sections of the female community, such as MPs who are sexually harassed by fellow MPs, domestic workers by employers, students by teachers, nurses by patients, patients by doctors, and passengers by bus drivers.
Today’s case before the Federal Court is being pursued by way of a claim for damages under tort, a concept under common law that refers to a civil wrong that unfairly caused someone to suffer loss or harm.
“A claim for damages and injunctions under the tort of assault can always be maintained if the victim feared for her safety while being sexually harassed.
“If there was any contact, however light ― like a stroke on the cheek, the lightest touch on her buttocks ― a claim can be made under the tort of battery,” Tan explained.
She labelled sexual harassment a “gender-based crime”, claiming it affects women disproportionately more than men.
“This is mainly because of women's subordinate position in society relative to men, and it is especially so at the workplace,” Tan said.
Sumithra said a decision that favours the victim would also put stronger pressure on employees to create policies that ensure avenues for redress, in addition to holding perpetrators accountable and making sure they are aware of the repercussions that await them if they are guilty of harassment.
“What’s really important, is that we must have a standalone sexual harassment Act which is comprehensive and meaningful, and can allow people to bring their claim,” urged Sumithra.
“It should also recognise that sexual harassment has a very critical psychological impact. Women who face sexual harassment suffer severe psychological damage, such as depression. That is very debilitating.”
In today’s case before the Federal Court, the male plaintiff had initially sued his former co-worker, the female defendant, for alleged defamation in a Kuala Lumpur High Court, claiming that a sexual harassment complaint lodged by her was defamatory towards him and was purportedly the reason why his work contract had not been renewed.
The defendant subsequently counter-sued him for sexual harassment, claiming the incident had caused her serious emotional, mental stress and trauma.
The defendant was working under the plaintiff in Lembaga Tabung Haji (LTH) when she lodged a complaint with the pilgrim fund’s chief executive officer in 2009 of the alleged sexual harassment.
An inquiry set up by LTH afterwards found insufficient evidence to exact disciplinary action against the plaintiff, and he was slapped with only a strong reprimand from the firm’s human resource department, while the defendant was transferred to another division.
High Court’s Justice Amelia Tee Abdullah in her decision on September 2012 had dismissed the plaintiff’s claim and allowed the defendant’s counterclaim, awarding her RM120,000 in total for damages.
The plaintiff then appealed the case in the Court of Appeal, where a three-man panel led by Justice Datuk Zaharah Ibrahim on December last year also upheld the High Court judge’s decision, leading him to file an appeal in the apex court.