SERVICIO DE AGUA POTABLE EN EL CANTÓN HUACA 1 Características generales

Neither the Employment Act 1955 (before the (Amendment) Bill 2012) nor the Industrial Relations Act 1967 uses the term ‘sexual harassment’. Therefore, redress must be sought in terms of an existing misconduct or cause of action (Ng, Zanariah & Maria, 2003).

2.2.2.1 The Employment Act 1995 (before the (Amendment) Bill 2012)

It should be noted that this Act only applies to West Malaysia as employees in Sabah and Sarawak (East Malaysia) are covered under their own labour ordinances and public sector employees, consisting of civil services, statutory bodies and local authorities are also exempted from the Act.

Article 1 of the First Schedule to the Employment Act defines an ‘employee’ as any person who has entered into a contract of service with an employer under which her/his wages does not exceed RM1, 500.00. Article 2 provides “an exemption to the wage criterion established in Article 1 for persons who are engaged in manual labour, the operation or maintenance of any vehicle for the transport of passengers or goods, engaged as a domestic servant or supervise other employees engaged in manual labour”.

Section 14 of the Employment Act covers an employee who is under threat and therefore can be utilized in sexual harassment cases. Section 14(3) of the act reads as follows:

“An employee may terminate his contract of service with his employer without notice where he or his dependents are immediately threatened by danger to the person by violence or disease such as employee who did not by his contract of service undertake to run”.

“An employer may on the ground of misconduct which is inconsistent with the fulfilment of the express or implied conditions of his service, after due inquiry:

a) dismiss without notice the employee; or b) downgrade the employee; or

c) impose any other lesser punishment as he deems just and fit, and where a punishment of suspension without wages is imposed, it shall not exceed a period of two weeks”.

A complainant/victim who feels that she/he has been dismissed, downgraded or punished in some way for making a complaint about being sexually harassed or for not complying with the demands of the harasser may challenge the decision of the employer in the Labour Court. Even, if the complainant/victim feels that the domestic inquiry had not supported their claim and was not reasonably conducted, she/he can lodge a complaint with the Department of Labour, which is responsible for enforcing the Employment Act.

The Director-General of the Department of Labour is accorded with the power to investigate the complaint, make orders and exercises this power through the Labour Court. However, the Labour Court is not an arbitration tribunal or a court of law. It is a quasi-judicial administrative procedure sanctioned by statutory, Section 69(3) of the Act which read as follows “Director-General to inquire into and set aside any decision made by an employer under Section 14(1) and make any orders necessary to give effect to her/his decision”.

2.2.2.2 The Industrial Relations Act 1967

Whereas the Employment Act is concerned more with the provision of minimum benefits the Industrial Relations Act 1967 pertains specifically to the settlement of disputes between employers, workers and unions i.e. unfair dismissal, constructive dismissal and collective agreement. It must be noted here that The Industrial Relations Act 1967 applies only to the private sector.

(a) Unfair dismissal

A worker who has been dismissed due to her/his failure to respond to the sexual advances of a superior or co-worker may lodge a complaint of unfair dismissal and a request for reinstatement with the Director General of Industrial Relations within 60 days of her/his dismissal. The Director-General will take steps she/he thinks necessary to resolve the disputes; where she/he is satisfied that there is no likehood of the dispute being settled, she/he shall notify the Minister of Human Resources. The Minister may then refer these representations to the Industrial Court for an award. It should be noted that the Minister exercises discretionary powers in referring disputes.

(b) Constructive Dismissal

Constructive dismissal denotes summary termination of the contract of employment not by the employer but by the employee due to the employer’s conduct. Constructive dismissal is not explicitly recognized in the Industrial Relation Act; nevertheless, it is interpreted with reference to the common law principle, and has been held to be within the ambit of Section 20(1) which deals with representation on dismissals. Where a complaint of constructive dismissal is received by the Director of Industrial Relations, she/he will notify the Minister for Human Resources, who may refer the case to court.

(c) Collective agreement

Another option exists if the complainant/victim is a member of a trade union and sexual harassment is listed as a ground for misconduct and a cause for discipline in the Collective Agreement between the union and management. A Collective Agreement which the Industrial Relations Court has sanctioned is deemed an award and it binds the trade union and management to the agreement. If the employer has not handled a sexual harassment complaint properly, the union, on behalf of the employee, may demand compliance with the Collective Agreement. The case would then be heard by the Industrial Relations Court under Section 14(d) and Section 56(1). Presently, sexual harassment per se is not featured in many of the Collective Agreement despite calls to do so by the Ministry of Human Resource and women activist groups.

2.3 The Code of Practice on the Prevention and Eradication of Sexual Harassment