The author, as a termination specialist and doctoral research candidate, is essentially a story collector. In both her profession and her academic pursuit, she critically analyses court cases as discourses, peeling each “court story” layer by layer, breaking them into themes. Sometimes this thematic analysis process brings unexpected results, which may not have been articulated by the presiding judge in the awards but derived from the evidence and testimonies of the parties and witnesses quoted in judges’ findings.
One of the common antecedents of workplace disputes is sexual harassment.
Sexual harassment is defined by the Employment Act 1955 (2012 Amendment) as “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”.
Studying cases of sexual harassment in depth and from their different facets reveals so much more than just the legalistic “cause-and-effect”. The pain and shame of the victims, the sheer audacity of the harassers, and the sage wisdom of the judges all converge into a collage of human stories that etch themselves into our minds for the longest time.
Here the author has hand-picked three of these human stories, chosen for the inner strength of the victims in speaking up and defending their rights or the rights of other victims, against all odds.
The story of Asmah Mohd Nor, who was sexually harassed and tortured mentally by her superior for years, is one of a woman determined in fighting for her rights in spite of suffering a serious psychiatric condition brought on by the traumatic ordeal of the harassment incident. Her case was so compelling that lead to the apex Court of the country creating the tort of sexual harassment, which made Malaysian legal history in 2016.
Asmah in this case reported to Mohd Ridzwan, who was then the General Manager of the same Division. Mohd Ridzwan, or Dr Risk as he was known in the organisation, had made countless sexually-oriented and sexually-harassing remarks, dirty jokes and lewd gestures towards Asmah and her colleagues, and once even told Asmah to “f**k off!” during the course of work.
Initially Asmah did not respond, fearing that she may lose her job if she were to speak against him or report the harassment. One day however, unable to tolerate his behaviour any longer, she decided to make an official report to the CEO. Pursuant to her report, the CEO instructed for investigation and inquiries to be conducted. The management did not find enough evidence to charge Dr. Risk with misconduct, however he was given an administrative warning and subsequently his contract was not renewed. Asmah, still suffering from the psychological effects of the harassment, eventually tendered her resignation.
Dr Risk, angry that his contract was not renewed, blamed Asmah’s report for it and filed a defamation suit in the High Court against Asmah.
Asmah countersued for damages for sexual harassment that caused her to suffer from emotional and mental stress. She brought in an expert witness, a consultant psychiatrist who treated her, to testify in Court.
In her testimony, Asmah told the High Court judge that the depression she was suffering from had changed her into an unhappy person who constantly cried at night due to pent-up feelings of anger, sadness and helplessness, unable to defend her honour and dignity.
The expert witness testified that Asmah first saw him three years after the sexual harassment incident. She complained of low mood, nausea, poor appetite, poor concentration, and low energy; all of which are symptoms of major depression. He was of the view that the main stressor was still Dr Risk although Asmah had already left the organisation by then.
The High Court considered the nature and length of the harassment, and the fact that Asmah was Dr Risk’s immediate subordinate who was in a weaker and more inferior position, who was forced to tolerate and withstand the harassment. The Court held that a strong message must be sent to those in senior positions “who think that just because they are the "boss" they can say whatever they like, to whoever they like, however many times they like without fear of repercussions. No employee should ever be required to remain silent and accept such harassment and degradation for fear of non renewal of contract or loss of employment.”
The High Court dismissed Dr. Risk’s defamation suit and accepted Asmah’s countersuit of sexual harassment and awarded her RM100,000 as general damages, RM20,000 as aggravated damages and costs.
Seven years after first harassing her at work, Dr Risk still would not leave Asmah alone, using the law and the court process to drag her through ordeal after ordeal. After failing to convince the Court of Appeal, he applied for leave to the Federal Court.
After mulling over the case, the Federal Court agreed with the High Court and in its exercise of judicial activism, it introduced the tort of harassment into the Malaysian legal system.
Dr Risk’s appeal was dismissed and Asmah finally got her well-deserved justice after years of suffering.
In between 2018 to 2020, the Royal Malaysian Police recorded 420 male victims of physical sexual assault and 24 male victims of non-physical sexual assault. The number of men who become victims of sexual assault and sexual harassment are at a worrying number, but many have gone unreported.
A 2019 YouGov Omnibus survey have shown that many men are hesitant to report when they are being harassed, mainly due to embarrassment, and the feeling that no one will do anything about the problem.
Aiman, who worked as a dealer in a bank, was going about his work as usual when a senior staff called Mr Dass approached him and asked him to come outside. Thinking that it was just for a casual chat, Aiman obliged. They got into a lift, and when the lift reached the parking lot, Dass dragged Aiman out and forcibly attempted to kiss him.
Aiman told his colleague and confidante Marhaini, who was then a Senior Executive reporting to Dass, about the kissing incident. Subsequently, fearing for his safety, Aiman resigned. Dass continued to sexually harass Aiman even after he left the bank. Aiman lodged a police report, but later retracted it.
Meanwhile Marhaini, angry at the fact that Dass would not leave Aiman alone and adamant that something must be done to protect the reputation of the bank, proceeded to whistleblow about Dass’s actions to the management.
To her shock, the bank retaliated and summarily dismissed Marhaini, citing, inter alia, that she had propagated a campaign against Dass and orchestrated the ejection of Dass from the organisation.
Disappointed and bewildered by the conduct of her employer, Marhaini fought back at the Industrial Court. Marhaini had worked for the bank for 27 years on her date of dismissal and claimed that her dismissal was without just cause and excuse.
The Court held that there was nothing wrong with Marhaini invoking her employer’s whistleblowing policy as she had followed the whistleblowing procedures accordingly.
The Court also held that the management of the bank was wrong in retaliating to her report and noted that the bank was more keen to protect the reputation of Dass rather than its own integrity: “It should be observed that the integrity and reputation of Anthony Dass was something that Anthony Dass could on his own accord defend and prove otherwise. There was no mention about the Bank's reputation and integrity since any allegation of sexual misconduct by a senior officer of an institution towards a subordinate should be taken seriously by the Bank and investigated thoroughly.”
This case illustrates to the society at large that men too can fall prey to sexual predators including those lurking at the workplace, and that they too can be rendered powerless by it and thus need support and help from the people surrounding them particularly their colleagues and employer.
Marhaini risked losing her job to speak up for a victim of sexual harassment against backdrop of workplace power politics to ensure that her colleagues can continue to work safely.
Related: How Power And Culture Is At Play In Sexual Coercion At Work
In 2009, seven teenage boys all under the age of 18 who were students at a boarding school in Negeri Sembilan, reported to the school authorities that they had been sexually harassed by a resident house tutor. The boys overcame their feelings of fear and shame and rose above their traumatic experience to testify as witnesses in a domestic inquiry where the tutor, Harold Fernandez was charged with several counts of sexual misconduct and later dismissed.
During the inquiry, a student referred to as HMJ testified that he was called by Fernandez to wait outside his apartment. Fernandez then brought HMJ inside his apartment, led him to his room, and started touching him inappropriately.
A student called G then testified that after the incident HMJ kept a very low profile for a few days. G recalled HMJ imploring to him and his roommate not to leave him alone fearing Fernandez would come and harass him again
Next, a boy named K recounted during the inquiry that two months before, he went to Fernandez’s apartment to seek advice from him. Fernandez had brought K into his room and proceeded to sexually harass him.
As if this was not enough, the result of the meticulous investigations conducted by the school revealed shocking statements from other boys that Fernandez had sexual harassed four other students in similar ways.
Tragic yet inspiring at the same time, this case perfectly sums up the death of youthful innocence at the hands of a trusted father figure; but because of the bravery of the students who dared to speak up despite his disgusting and deplorable acts, Fernandez was dismissed from his employment at the school, thus saving the rest of the students from the same ordeal.
It is normal to feel shocked, appalled or even helpless when we witness someone we know being sexually-harassed.
There are however some things we can do to help clarify our own perspective of things as well as render support to the victim.
Here are some suggestions of what can be done:
- Talk to someone who does not have anything to do with the situation, like a friend, relative or even a therapist. An objective and level-headed listener can help you figure out how to proceed.
- Reaching out in person to the victim and telling them you witnessed what happened can be reassuring to both the victim and to yourself.
- If you are not the only witness, it would augur well to band together with other witnesses when making a report. This can help the victim build a stronger case against the harasser.
- If your company has a whistleblowing policy, you may exercise your right to whistleblow on the incident to the top management so that thorough investigation can be conducted.
These articles may interest you:
Workplace Sexual Harassment: Start With Education And Awareness
Will We Finally See A Shift on Sexual Harassment Issues In Malaysia?
Rooting Out Harassment in The Workplace
Sometimes, though, in spite of anti-retaliation policies having been endorsed by the management, there may still be negative repercussions and employees will be left feeling powerless to change the culture. This would in turn cause more stress and anxiety, resulting in long-term psychological, even physical, health concerns. The best option may therefore be to just leave the organisation.
Can sexual harassment be prosecuted as a crime? Are there laws that can be used to prosecute the perpetrator? Watch this informative video for all the details.