- 公司在员工做出书面投诉后立即展开调查，之后进行了Domestic Inquiry。公司对经理的指控是：
- 2016 年 3 月 9 日在办公室抚摸员工的胳膊以及手部；
- 2016 年 3 月 10 日在午饭前，到受害者的办公室询问公司项目近况的同时，再次抚摸她的手臂；
- 2016 年 5 月 6 日上午 9 点左右，到受害者的办公室询问她的健康状况时，抚摸了她的背部，以及按摩她的手掌。
- 工业法庭在裁决中指出，根据刑事法典第 345 条文，性骚扰可以是一种犯罪行为。工作场所的性骚扰是基于受害者的看法，而不是骚扰者的意图。在本案中，受害者很明显对经理的触摸感到反感，甚至导致她失眠。
Touching a Colleague Without Consent
- Prior to his dismissal, an employee had been Head of Corporate Services of his organisation. Prior to the opening day of an Islamic Finance Conference, the manager called his subordinate to his office to brief him on the progress of the conference. While she was standing at the front door of his office, he held her arm and said, “sedap jugak pegang lengan kau ni” (It’s nice holding your arm”). When she froze in response to his words, he said, “ok, ok”. The next day, the victim claimed that he again caressed her arm. She told her colleague about this behaviour but did not make a formal report as the conference was an important event for the organisation and she did not wish to jeopardize its success.
- Two months later, the manager came to her work area after she had returned from medical leave, rubbed and caressed her back and asked for her hand, which he proceeded to massage saying that this would relieve her migraine. On the same day, the harassment victim lodged a complaint and asked for a transfer to a different unit in the organisation. Two days later, she sent a Whatsapp message to the manager telling him that his touching her was so upsetting that she could not sleep and had become afraid to go to work. The manager’s response was to apologise.
- The Company carried out an investigation into the employee’s complaint once she put it in writing and a domestic inquiry was held. The charges were:
- “That on 9th March 2016, sometime between 3.00pm and 4.00pm, in your room you were alleged to have held Cik Zurainah’s arm when she came to your room to inform you the status of the Islamic Finance Conference 2016 … You had uttered the words, “Sedap jugak pegang lengan kau ni” and again holding her hand on the pretext of “Nak tengok jam kau” as uttered by you again.
- That on 10th March 2016, in the morning sometime before lunch, you went to Cik Zurainah’s cubicle and enquired the latest status of the IFC program while at the same time caressing her arm as reported “sambil tangan beliau mengusap-usap lengan saya”.
- That on 6th May 2016, at about 9.30am, you went to Cik Zurainah’s cubicle to enquire about her well-being as she was on sick leave the day before. You were alleged to have caressed her back and uttered the words, “Ok ke … stress kerja ke … banyak kerja ke?” You had then instructed her to show her hand. You had touched her hand and massaged her palm in between her thumb and uttered the words, “ini cara urutan untuk menghilangkan sakit kepala”.
- The chief executive officer decided to dismiss the manager even though he had been found guilty by the Domestic Inquiry Panel of only the third charge, to which he had admitted guilt. The organisation’s Board of Directors considered the manager’s offence to be serious, particularly as the Staff Handbook prohibited any immoral act opposed to Islamic teachings. The organisation also had a written Code of Practice on Sexual Harassment.
- In writing its Award, the Industrial Court pointed out that sexual harassment may be an offence under section 345 of the Penal Code but the proof required to find a person guilty of this criminal act is of a high standard and rarely available in the workplace where harassment takes place one on-one, away from the sight or hearing of witnesses.
- The Court said, “Sexual harassment in the workplace is always based on the perception of the recipient and not on the intent of the harasser. It is quite clear in this case that the complainant did not take kindly to the claimant touching her and it gave her sleepless nights.” The Court went on to say, “… the Company had solid and sensible grounds for finding the claimant guilty on the three charges. Finally, I have seen and heard both the claimant and the complainant. I have no hesitation in accepting the testimony of the complainant.”
- The Court found the dismissal to be with just cause and excuse.
- Employee Misconduct CLJ PUBLICATION
- Shamshir Alam SM Khairuddin v. IBFIM  2 LNS 0662
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