- 公司指控有关经理于2008年至2009年期间碰触一名女性员工的臀部；另外他也被指控在2010年1 月 13 日，企图强吻一名已婚的女员工。该经理之后被解雇。
- 根据公司在法庭提供的证据，以及两名受害者的书面申诉，法庭倾向于相信受害者的指控。 此外，法庭也注意到，尽管经理投诉有关指控是捏造的，但他无法提供证据证明这两名受害者有工作表现不佳的问题。法庭也表示，法律上并没有规定对员工不当行为的指控必须有警方的报告以作证明。而且当时两名受害者的部门并没有人力资源部的代表，因此她们不知道可以向谁投诉。
- After 31 years’ service, a manager holding the position of Zone Head was dismissed on the grounds that he had been found guilty of sexual harassment of two of his subordinates. At a domestic inquiry held prior to the dismissal, the manager was charged as follows:
- “It is alleged that you had, while holding the position of Head, Zone Office, Negeri Sembilan on 13th January 2010, between 7.30pm and 8.30pm committed acts of sexual harassment on Puan Vasla… (full name withheld here by the author to protect the complainant), who was then employed as a clerical staff at the Zone Office, Negeri Sembilan and reporting to you, by uttering the words, “Do you know how to kiss?” and then forcibly attempting to kiss her, despite her objections details of which are to be found in the statement made by Puan Vasla… on 24th June.
- It is further alleged that you had, while holding the position of Head, Zone Office, Negri Sembilan between the end of 2008 and May 2009 committed acts of sexual harassment on Cik Herwati…, who was then employed as a clerical staff at the Zone Office, Negri Sembilan and reporting to you, by hitting her buttock with your hand without her permission detail of which are to be found in the statement made by Herwati on 23rd August 2010.”
- A domestic inquiry found the manager guilty of the first charge, after which he was dismissed. At the Industrial Court, the manager denied that he had committed sexual harassment and said that the two employees were angry with him for reprimanding them for mistakes made by them and for poor performance and were attempting to take revenge by making the allegations of sexual harassment.
- Based on the evidence given in Court which was consistent with what she had said at the domestic inquiry and in her written complaint, the Court was inclined to believe the victim’s allegation. Furthermore, the Court noted that although the manager complained that the allegations were fabrications, there was no evidence produced by him to show that the victim had poor performance warranting reprimands. The manager also claimed that the allegations could not be true because the victim had not made any complaint at the time to the Human Resource Department, nor had she made a police report.
- The Court commented “There is no principle of law which states that all complaints of misconducts of an employee must be proven with a police report.’ As the alleged harassment had taken place in an office in an estate which had no representative from the HR Department, the employee did not know to whom she could complain.
- The Court went on to say, “No married woman in her right mind would fabricate such an allegation with specific details knowing fully well that such an allegation would cause embarrassment and difficulties to her.” Finally, the Court said, “The next issue left for consideration is whether the misconduct committed by the claimant warrants the punishment of dismissal. Sexual harassment is a very serious misconduct and in whatever form it takes, cannot be tolerated by anyone. In whatever form it comes, it lowers the dignity and respect of the person who is harassed, let alone affecting his or her mental and emotional wellbeing.
- Perpetrators who go unpunished, will continue intimidating, humiliating and traumatizing the victims thus resulting, at least, in an unhealthy working environment.
- The Claimant’s act of misconduct … is serious more so on a married woman who is his subordinate. What the Claimant did …. as stated in allegation No.1 tantamount to sexual harassment at a work place which is a grave misconduct. The unwanted physical contact was deliberate, unacceptable and thereby caused distress.”
- The dismissal was upheld.
- Employee Misconduct CLJ PUBLICATION
- Augustus Gerald P Benedict v. 1) Sime Darby Holdings Bhd & 2) Sime Darby Plantations Industrial Court Award No. 714 of 2018
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