HRM659 Court CASE ( Sexual Harassment) PDF

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FACULTY OF BUSINESS AND MANAGEMENT UNIVERSITI TEKNOLOGI MARA CAWANGAN SELANGOR KAMPUS PUNCAK ALAMHRM659 - INDUSTRIAL RELATIONGROUP ASSIGNMENT 1: COURT CASEPREPARED BY: NAME ID CLASSIli Farhana Binti Hasdi 2019819176BA243 5BMaisarah Binti Dzulkefli 2019685534Nur Syamimi Binti Norisham 2019893242Hanis...

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FACULTY OF BUSINESS AND MANAGEMENT UNIVERSITI TEKNOLOGI MARA CAWANGAN SELANGOR KAMPUS PUNCAK ALAM

HRM659 - INDUSTRIAL RELATION GROUP ASSIGNMENT 1: COURT CASE PREPARED BY: NAME

ID

Ili Farhana Binti Hasdi

2019819176

Maisarah Binti Dzulkefli

2019685534

Nur Syamimi Binti Norisham

2019893242

Hanis Nadhirah Binti Mohd Jani

2019848856

Nur Shuhailah Binti Nor Shahrudin

2019853944

Nur Hana Ameera Binti Mohammad Akmal

2019201218

PREPARED FOR: MADAM MAZLINA BINTI AHMAD ZAYADAH

CLASS

BA243 5B

TABLE OF CONTENTS CONTENT

PAGES

COURT CASE 1 INTRODUCTION

4

SUMMARY

5

CAUSES

6

EFFECTS/CONSEQUENCES

7

CURRENT EMPLOYMENT LAWS

8

COURT DECISION

11

RECOMMENDATION

12

CONCLUSION

15

COURT CASE 2 INTRODUCTION

17

SUMMARY

18

CAUSES

19

EFFECTS/CONSEQUENCES

20

CURRENT EMPLOYMENT LAWS

22

COURT DECISION

25

RECOMMENDATION

26

CONCLUSION

28

REFERENCES ATTACHMENT COURT CASE 1

33

COURT CASE 2

79

COURT CASE 1

INTRODUCTION The Industrial Court has decided many cases on the issues of sexual harrasment. Sexual harassment is defined as disrespectful, or intimidating sexual behaviour which can happen in the form of a written, verbal, or physical communication, and it can take place in person or online (What is sexual harassment?, 2021). Sexual harassment1 in the workplace has been the subject of much public debate in recent years, with statistics indicating that most women have experience being sexually harrased especially in the workplace (Harned, 2002). The ministry of Human Resource introduce Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace in 1999 for employer to apply in the organization to prevent sexual harrasment against fellow employee (Sexual Harassment: Laws in Malaysia – WCC, 2012).

Sexual harrasment can be cause by various of reason as it differs from one situation to another. Some cases may link to the culture and values of the organisation itself, the power and relationship between the man and woman in the firm. For instance, in some part of the world, exist a culture where it makes the man looks more masculine when discriminating women as women are seen as the weaker one. Women whom are breadwinner of the family are more likely to dismissed harassment and eventually become the victim of sexual harrasment. Sexual harrsment can lead to heavy cost to the organization. Being harassed may disturbed the working environment and affect productivity. Furthermore, legal costs can also be involved (Prekel, 2001).

According to the 10th edition of Malaysian Industrial Relations and Employment law, Ministry of HR has distributed a Code of Practice on the Prevention and Eradiction of Sexual Harassment at the Workplace. Sexual harrasment is defined in this code as any unwanted sexual conduct that has the impact of verbal, nonverbal, visual, psychological, or physical harassment (i) that could reasonably be considered by the recipient as imposing a sexual condition on his or her employment and (ii) may be viewed by the recipient as an offence, humiliation, or a threat to her or his well-being on reasonable grounds, it has no direct link to his or her work. Statements of dissatisfaction can be made to the employer and Director General of Labour. Hence, any form of sexual harrasment in the workplace should not be tolerated or dismissed.

SEXUAL HARRASMENT COURT CASE Harry Wong Wei Chen v Petroliam Nasional Berhad (Petronas) Case No: 22/4-818/19 Award No: 3 CASE SUMMARY Both Harry, The Claimant and The Complainant, whose identities will be kept private, were coworkers working overseas. They were assigned to a project in Tehran, Iran as part of their duties. During their visits to Iran for a project, The Complainant receives several intolerable actions by her Project Manager that are in charge of their group. The claimant was not under the impression that his actions will result in great consequences as he claims The Complainant does not show any uncomfortableness when working together.

When she returned to Malaysia, the Complainant accused Harry of sexual harassment and workplace harassment. The Claimant was suspended at first, after Petronas, referred to as the Company, received several reports about his action and behaviour that caused the working environment to be unpleasant. The Company filed 13 harassment charges in this regard. A domestic investigation was launched, Harry was suspended and eventually fired. Harry filed a claim for unfair dismissal against the Company after being dissatisfied with the Company's decision. The court decided that the decision made by the company was ‘done with just cause and excuse’.

CAUSES OF DISPUTE Dismissal of Harry Wong Wei Chen by Petroliam Nasional Berhad on 18 October 2018. The dismissal was done on the grounds of sexual harassment that occurred between the claimant and the complainant. The claimant is a Project Manager under the PETRONAS-NIOC Dezful Embayment project, the Abadan Square Joint Study Project, based in Tehran, Iran (“Iran Project”). While the complainant was among one of the team members for the Iran Project. On 2 March 2018, the complainant had lodged a complaint with the company regarding an action taken by the Claimant in which the Claimant allegedly had sexual intercourse and/or harassment in the workplace against the Complainant. Among the things done by the Claimant was on 16 October 2017, the Claimant had issued the word "Fuck you" and had shown an obscene gesture of the middle finger to the Complainant. In addition, on 24 November 2017, during a discussion on work plans and project issues at Suite 33, Hotel Aasa, Tehran, the Claimant scolded the complainant by uttering the words “You don't want to add drama to me… Otherwise I'll fuck you again ! ” and showing something obscene (i.e. middle finger) to the Complainant. Many complaints were issued by the complainant to the company about the conduct of the claimant. Due to the severity of the complaint being issued, the Company initiated an investigation.

EFFECTS OR CONSEQUENCES

The Chairman of the Industrial Court, Paramalingam J Doraisamy C, has already assessed the available evidence with reference to the issues mentioned earlier. Based on the case itself, it states that after the incident, when the company saw the complaint given by the complainant, the company continued to take action such as, on April 2, 2018, the company issued a Notice Showing Cause in respect of workplace allegations and/or sexual harassment as stated in the preceding paragraph to the claimant. The Claimant has also been suspended on full pay until April 30, 2018, to facilitate the investigation. So when the claimant is satisfied with the action, the claimant issues his reply to the Notice to Show Cause on 11 April 2018 against the company. When the company found that the claimant was dissatisfied, the Company then issued a Domestic Investigation Notice on 24 April 2018 whereby a Domestic Investigation was held on 7 May 2018 for the Claimant to respond to the charges thrown against him. The Internal Investigation Panel found the Claimant guilty of all the charges thrown out. The Management of the Company, after reviewing the notes and evidence made during the Domestic Inquiry proceedings, agreed with the findings of the Inquiry Panel and proceeded to dismiss the Claimant from employment with immediate effect by Company letter dated 18 October 2018 (“Notice of Dismissal”). The Company views the Claimant's misconduct very badly. So, the company is no longer able to provide the necessary trust and confidence to the Claimant.

CURRENT EMPLOYMENT LAWS

Definition of sexual harrassment: Sexual harassment is defined in the Employment Act 1955 ("EA 1955") as "any unwelcome sexual behaviour directed towards a person, whether verbal, nonverbal, visual, gestural, or physical, which is insulting or degrading or poses a harm to his well-being, arising out of and in the course of his employment."

Section 81A of Employment Act 1955 Any sexual harassment complaint lodged (i) by an employee against another employee; (ii) by an employee against any employer; or (iii) by an employer against an employee is referred to as a complaint of sexual harassment.

Section 81B (1) of Employment Act 1955 When a complaint of sexual harassment is received, an employer or a group of employers must investigate the complaint in the manner stipulated by the Minister.

Section 81C of Employment Act 1955 When an employer conducts an investigation into a complaint of sexual harassment received under subsection 81B(1) and determines that sexual harassment has occurred, the employer must: (a) take disciplinary action against the person against whom the complaint of sexual harassment has been made, which may include: I dismissing the employee without notice; (ii) downgrading the employee; or (iii) imposing any other lesser sanction.(b) if the person accused of sexual harassment is not an employee, suggest that the person be brought before a relevant disciplinary authority to which the person is subject.

● MISCONDUCT In Award No. 255 of 1990, the Industrial Court defined misconduct as (a) inappropriate behaviour, intentional wrongdoing, or willful breach of a regulation or standard of conduct, and (b) any behaviour inconsistent with the faithful discharge of his duties.

Section 14 of Employment Act 1955 Misconduct has been defined as behaviour inconsistent with the express or implied terms of employment contract.

Section 14 (1) of Employment Act 1955 After appropriate investigation, an employer may, on the basis of wrongdoing inconsistent with the fulfilment of the statutory or implicit requirements of his employment— (a) terminate the employee without cause; (b) demote the employee; or (c) impose any other lower penalty that he thinks reasonable and appropriate, with the exception of suspension without pay, which shall not exceed two weeks.

Section 14 (2) of Employment Act 1955 The employer may stop the employee from work for a period of not more than two weeks for the purposes of an investigation under paragraph (1), but must pay him not less than half of his earnings during that time.

● UNFAIR DISMISSAL Section 20 of Industrial Relations Act 1967 An employee who believes he was dismissed without reason or explanation by his employer has 60 days from the date of his termination to file a complaint with the Director General of Industrial Relations. The employee is demanding that he be returned to his old position with the company by making such a claim.

Section 20(2) of Industrial Relations Act 1967 Upon receipt of the representations, the Director General shall take whatever actions he deems necessary or expedient in order to reach an expedited resolution; if the Director General determines that the representations are unlikely to be resolved, he shall tell the Minister.

Section 20(3) of Industrial Relations Act 1967 The Minister may, if he considers it is appropriate, submit the submissions to the Court for an award after receiving the Director General's notification under paragraph (2).

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COURT DECISIONS

Harry Wong Wei Chen has been charged with 13 harassment in the workplace. Harry, The Claimant tried to deny the incidents mentioned by The Complainant but failed to show any evidence to support his statements. He stated that The Complainant does not show any discomfort being in the same group project with him. However, their team was small and had to be close to each other as they are in Iran. Hence, the justification is unacceptable.

The Company has successfully proved on a balance of probabilities that he is guilty of Charges (a), (d), (e), (f), (g), (h), (i), (j), (k), (l) and (m). These charges are proven by the testimony of the witness and a few screenshots of Whatsapp text by The Complainant to her friend. However, he cannot be charged with Charges (b) and (c ). The Claimant was not guilty of charge (b) as there is lack of evidence based on the Whatsapp text and as for charge (c ), The Company was not able to prove that he really did call The Complainant ‘Pishy Pia’.

The Claimant was suspended with full pay on 2 April to 30 April 2018 due to the extreme complaints received by The Company. The Company proceeded to terminate the Claimant and the decision was supported by the court as ‘done with just cause and excuse’.

RECOMMENDATION

A working woman is more likely to have such an incident at work, when a male treats her as a potential lover rather than an employee or coworker. He may frequently compliment her appearance, rub her shoulder, wrap his arm around her waist, and ask her to lunch or dinner to discuss her career prospects. It will most likely make the woman uncomfortable in the long run. Some people may choose to endure in order to live, but if their depression worsens, they may finally succumb. Others may fight but fail, and as a result, they may face reprisal and be compelled to quit or be dismissed. In reality, what these ladies have gone through is referred to as "sexual harassment." Thus, each company management have to take this matter seriously in order to prevent sexual harassment from happening. Recommendations for employees and companies to avoid sexual harassment in the workplace.

Firstly, Establish special workplace policies for the prevention of sexual harassment. This include the definition of sexual harassment in the workplace, employees who engage in sexual harassment will face severe consequences; establishment of an agency to handle sexual harassment allegations and resolve disputes; retaliation against complainants, witnesses, and others involved in the sexual harassment case is prohibited and managers and supervisors are responsible for enforcing the ordinances. Once special workplace policies are implemented, all employees are obligated by the law and have full awareness on how serious these issues are taken by the management. Thus, this will surely help in prevention of sexual harassment.

Secondly, Create a specialised organisation and define its responsibilities. In practice, the special organisation might be established at the HR department or a labour union, with rules defining its tasks. For example, GE's bylaws provide that managers and directors are responsible for inform workers on the company’s zero tolerance policy for sexual harassment, take prompt action to prevent or check any aggressive or inappropriate conduct, since noncompliance will only exacerbate the situation and desist from sexual harassment, report any instances of sexual harassment. Other than that, this organisation also are encourage to be opent and competent to listen to sexual harassment accusations and explain to employees that company’s anti-sexual

harassment rules and processes and lastly Provide prompt and sufficient feedback to any complainant, and promptly report any complaint of intimidation, coercion, attack, or rape.

Thirdly, Launch frequent sexual harassment prevention education and training initiatives. Regular training programmes on the avoidance of sexual harassment in the workplace should be attended by all workers, including new employee training, credit examination meetings, credit communication correspondence, and management training. Legal and HR functions can create such training sessions, which are offered both online and on-site to be easily accessed by all employees. The trainees explore situations that might be considered sexual harassment in order to attain the goals including (1) recognize the signs and symptoms of sexual harassment, (2) find out how sexual harassment affects the organisation and its employees, (3) consider ways to avoid sexual harassment and learn how to do so and lastly (4) know what to do if you're the victim of sexual harassment. With this speacial training initiatives, more employees are aware on how sexual harassment happen and all incident can be prevented. It's a very good move for the management of each company to implement this.

Lastly, Deal with abnormalities as soon as possible and in a professional way. When an abnormal conduct is discovered, the employer should move quickly to correct it, which may include warnings, transfers or demotions, compensation reductions, suspension of tasks, and dismissal, based on the following factors: (1)Sexual harassment level (inappropriate jokes or persistent touch, for example); (2) Deterrence is required; (3)Whether the harasser has ever been convicted of a crime; (4) Observance of precedent; and (5)Employee's performance history, etc. Even if the harasser is not fired, he or she will almost always be required to retake the sexual harassment prevention course. All measures should be taken to prevent the informer from being harassed by the same individual again, including permanent isolation of the two people involved to prevent them from contacting each other. In addition, precautions should be made to ensure that the informant is not retaliated against.

All in all, each company have their own ways on preventing sexual harassment from happening in their workplace. Company management and trade union leaders can play a stronger role in avoiding workplace sexual harassment and encouraging businesses to do a better job of meeting their social duties. Employees, particularly women employees, should understand how to protect their dignity and work together to build a pleasant workplace and a culture of mutual respect.

CONCLUSION

Malaysia has made strides in raising awareness about the seriousness of sexual harassment. Many women have experienced traumatising events happening to them, either in public or at their workplace. Sexual harassment allegations or accusations in the workplace should no longer be disregarded or discarded lightly. A study shows that sexual harassment has direct effects on work-related negative mood as well as indirect effects on several outcomes (e.g., turnover intentions, interpersonal job dissatisfaction, and psychosomatic complaints) that are important for optimum employee functioning, and that females are more negatively affected by sexual harassment than males. Furthermore, it was shown that sexual harassment had an indirect effect on two components of performance, namely cognitive distraction and grades. As a result, requests to reduce the incidence of sexual harassment can now be supported not just on an ethical level, but also on the basis of factual facts demonstrating its significance to the workplace.

All management in each company should be aware of the importance of this matter. Employers should be proactive in spreading sexual harassment awareness and managing complaints. Employers should also take the initiative to learn and recognise what constitutes sexual harassment in the Malaysian workplace, as well as to create internal rules and steps to help avoid such interactions to happen in the organisations. Employees may have a hard time working in a team where there's a predator among them thus this will affect their job performance and may lead to more pressure and stress during work. In order to create a safe workplace, it is important to ensure that a company's policy and grievance procedure adequately address the issue of sexual harassment as stated above, and that the company's human resource department is able to appropriately han...