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KUALA LUMPUR
Facts: The employee was dismissed by the Company nine charges of verbal
sexual harassment were preferred against him as follows:
That you as the Assistant Branch Manager of Sitiawan Branch had on 30 July
2002, at about 2:15 pm, in the Managers room, verbally harassed Ms. Aw Mei
Hwa, an Officer of the Branch by uttering to her words to the following effect:
(a) That she wants to show you her breast and you could see her breast;
(b) That she will open her legs wide whenever you are near her;
(c) That she did the above matters on purpose for you and other staff to see;
What is Sexual Harassment?
Understanding the Code
(d) That you could tell the colour of her panties that she is wearing;
(h) That you challenged her to put her hand inside the pants of other
le staff; and
(i) That you have alleged that she has affairs with other guys.
Your conduct as above tantamount to sexually harassing Ms. Aw Mei Hwa and
becoming of you as an employee of the Bank.
What is Sexual Harassment?
Understanding the Code
Held: The admission of the employee that he had uttered the
words as contained in the charges is consistent with what
amounts to sexual harassment as explained by Article 4 of
the Code.
It was further quoted from the above case that;
In any society such conduct by the Claimant does certainly
warrant instant dismissal. Society does not tolerate such
behaviour. The message to be passed down is that if a person
sexually harasses another person at a work place, that
person can expect instant dismissal, even if that person has
had a good track record.
Shook Lin k Bok EST 1918
KUALA LUMPUR
Wrapping his arm around a female co-worker and clasping her hand against her
free will and consent.
Holding the hand of a female co-worker and stroking her arm without her free will
and consent.
Patting the buttock of a female co-worker against her free will and without her
consent.
Massaging the shoulder of a female co-worker against her free will and without her
consent.
Putting his hands around the waist of a female co-worker against free will and
without her consent.
Case Analysis What constitute Sexual
Harassment
In the same case, the Court however held that the following do not constitute
sexual harassment:-
Uttering the following words; I want you to come back with me to the
hotel in Cyberjaya, I have a room in Cyberlodge.
Sitting next to and staring at a female co-worker while saying, Buat la kerja I
nak tengok and I suka jari you.
Regularly requesting her to go on a date with him and send an sms that reads:
how you doing? Suddenly I miss you so much.
Made the following remarks when she told him not to hold her hands, I dont
give a fuck about what people have to say, I am the GE and I can do whatever I
want. I can even sack a few people you know.
Case Analysis What constitutes Sexual
Harassment.
Declaring openly that he will only send the complainant to
junket if she is nice to him.
(b) when he gives you a social hug-kiss and does the same to everyone else.
(e) if you have done a good job, he pats you on the shoulder
(g) when he gives you an appointment after office hours and discusses matters with his office
door open
(h) When he tells you that you may have to entertain male clients, even at night.
What does not constitute sexual harassment?
Sunway Lagoon Club Bhd v Md Noh Mat Tahir (2007) 2 ILR 273
Facts: The Complainant (a club member) alleged that she was sexually
harassed by the employee who gave her a massage in her state of partial
undress. The Complainant alleged that the employee fondled her breasts and
touched her private parts.
Held: The conduct of the Complainant immediately after the massage was
important to prove whether she was actually harassed. After the massage, the
Complainant accepted an invite from the employee for coffee, and also asked
the employee to give her a lift home. In this case, the court found grave doubts
about the veracity of the Complainants evidence and found that the need for
corroboration was very necessary. This is because the conduct of the
Complainant was not consistent with a person who claims to be sexually
harassed.
Shook Lin k Bok EST 1918
KUALA LUMPUR
Held: The two senior officers, Desmond and Nik Murad were guilty of
dereliction of duty in not taking any remedial measures when the Claimant
informed them of the sexual harassments committed by Sivananda, the
Claimants superior. All the incidents were reported to them when the
claimant could no longer tolerate the harassments. The facts showed that
they had connived and condoned the acts of Sivananda. The Claimant
was left with no other alternative but to consider herself constructively
dismissed and she had lawfully done so.
GENDER
DISCRIMINATION
Gender Discrimination
Gender discrimination or sexism, is
prejudice or discrimination based on
a persons sex or gender. It affects
both men and women, but is more
apparent toward women.
Art 9
1. States Parties shall grant women equal rights with men to acquire,
change or retain their nationality. They shall ensure in particular
that neither marriage to an alien nor change of nationality by the
husband during marriage shall automatically change the
nationality of the wife, render her stateless or force upon her the
nationality of the husband.
2. States Parties shall grant women equal rights with men with
respect to the nationality of their children.
Gender Discrimination in Malaysia
Art 16
1. States Parties shall take all appropriate measures to eliminate
discrimination against women in all matters relating to
marriage and family relations.
1) All persons are equal before the law and entitled to the equal
protection of the law.
Facts
The employee, an air stewardess with Malaysian Airlines System
(MAS), was dismissed when she fell pregnant in contravention of the
terms of the collective agreement between the MAS Employees Union
(MASEU) and MAS.
Art 2(3) required her to resign if she became pregnant more than 5 times
and in the event she failed to do so, MAS would have the right to
terminate her services. She subsequently became pregnant fpr the 5 th
time and refused to resign. In accordance with the express terms of the
collective agreement, MAS terminated her services.
Cases in Malaysia
In Beatrice A/P AT Fernandez v Sistem Penerbangan
Malaysia & Ors [2005] 3 MLJ 681,
Due to the fact that the employee was employed as a Grade B category
flight stewardess, her right to equality was measured against the
rights of the other flight stewardesses in the same category. Further,
the employee chose to be appointed as a flight stewardess and agreed to
be bound by the collective agreement.
The FC did not address the issue of whether the Applicants right to
work and the right to continued employment during her pregnancy; and
on the applicability of CEDAW.
Cases in Malaysia
In Noorfadilla bt Ahmad Saikin bin Basirun & Ors [2012] 1 MLJ 832
Facts :
the employee applied for and obtained employment as a Guru Sandaran
Tidak Terlatih (GSTT), which she received a placement memo for. At a
briefing before her posting, the Plaintiff was questioned as to whether
she was pregnant. When she admitted that she was 3 months pregnant,
her placement memo was withdrawn.
Facts :
Her complaint was that the GSTT post was revoked and withdrawn on
the sole ground that she was pregnant and this was tantamount to
discrimination, against Art 8(3) of the Federal Consitution.
Cases in Malaysia
Noorfadilla bt Ahmad Saikin bin Basirun & Ors [2012] 1 MLJ 832, the
High Court held that :
the word 'gender' was incorporated into Art 8(2) of the Federal
Constitution in order to comply with Malaysia's obligation under the
Convention on the Elimination of all Form of Discrimination against
Women (CEDAW). It is settled law that the CEDAW has the force of
law. In interpreting Art 8(2) of the FederalConstitution it was the court's
duty to take into account the government's commitment at an
international level.
It was a basic biological fact that only women had the capacity to
become pregnant and thus discrimination on the basis of pregnancy
was a form of gender discrimination. Hence it was found that the
plaintiff should have been entitled to be employedeven if she was
pregnant.
Cases in Malaysia
In Air Asia Bhd v Rafizah Shima bt Mohamed Aris [2014] 5 MLJ 318
:
CEDAW did not have the force of law in Malaysia because the same
was not enacted as local legislation. For a treaty to be operative and
enforceable in Malaysia, it required legislation by Parliament. Without
express incorporation into domestic law by an Act of Parliament
following ratification of CEDAW, the provisions of the international
obligations in CEDAW did not have any binding effect. Ratification
alone did not make the provisions of treaties applicable for municipal
law.
I. age
II. being or becoming a transsexual person
III. being married or in a civil partnership
IV. being pregnant or having a child
V. disability
VI. race including colour, nationality, ethnic or national origin
VII.religion, belief or lack of religion/belief
VIII.sex
IX. sexual orientation
Gender Discrimination in the UK
Protection is afforded in these situations :
I. at work
II. in education
III. as a consumer
IV. when using public services
V. when buying or renting property
VI. as a member or guest of a private club or association
Gender Discrimination in the UK
Discrimination can come in one of the following forms :
Unless the courts are willing to take up the challenge and advance
the cause of gender justice by outlawing discriminatory laws,
practices and policies by expanding the scope of the Federal
Constitution, then the true value of these rights will remain as
nothing more than the paper they are written on. Judicial activism
and interpretation amplified the attempt by the courts to ensure
the relevancy of the constitution to best serve the society it has been
created for.
The Way Forward in Malaysia
The other alternative is legislative intervention. As the Federal
Court noted, Unless and until the Employment Act 1955 is
amended to expressly prohibit any term and condition of
employment that requires flight stewardesses to resign upon
becoming pregnant clauses such as the one in the Beatrice
Fernandez case remain valid and enforceable.
THANK YOU!