Workplace sexual harassment: the employer's two live duties

Most coverage of workplace harassment in Malaysia is about the Anti-Sexual Harassment Act 2022 as a legislative event. Very little of it tells an employer what is actually owed on an ordinary Tuesday. Two things are, and both are enforceable without anyone having filed anything.

Duty one: the notice

Section 81H, Employment Act 1955: an employer shall, at all times, exhibit conspicuously at the place of employment, a notice to raise awareness on sexual harassment.

No trigger, no threshold, no complaint required. It is a standing obligation that a labour officer can check on a routine inspection, and the most commonly unmet duty in Part XVA precisely because nothing prompts it.

Note also that s.81G was deleted by Act A1651. That section used to apply Part XVA irrespective of wages by way of a special provision; its deletion, alongside the universal First Schedule paragraph 1, means Part XVA now simply covers every employee under a contract of service.

Duty two: inquire, and account for a refusal

Section 81B(1): upon receipt of a complaint of sexual harassment, the employer shall inquire into it in the manner prescribed by the Minister.

Section 81A defines a complaint of sexual harassment as one made by an employee against another employee, by an employee against an employer, or by an employer against an employee.

An employer may refuse to inquire, but only on the two grounds in s.81B(3): the complaint has previously been inquired into and no harassment was proven, or the employer is of the opinion that it is frivolous, vexatious or not made in good faith. On a refusal, s.81B(2) requires the employer to inform the complainant of the refusal and the reasons in writing, as soon as practicable and in any case not later than thirty days after receiving the complaint.

A dissatisfied complainant may refer the matter to the Director General under s.81B(4). The Director General may direct an inquiry under s.81B(5)(a), or under s.81D(1) after assessing a complaint made to him directly. Where directed, s.81D(2) requires the employer to inquire and submit a report to the Director General within thirty days of the direction.

If harassment is proven, s.81C requires disciplinary action, which may include dismissal without notice, downgrading, or a lesser punishment — and where suspension without wages is imposed, it shall not exceed two weeks. Where the harasser is not an employee, the employer must recommend that the person be brought before an appropriate disciplinary authority.

Section 81F makes failure to inquire, failure to notify a refusal, failure to inquire when directed, and failure to report an offence, with a fine up to RM50,000.

The deadline that does not exist

There is no statutory deadline for completing an inquiry. The two 30-day clocks attach to notifying a refusal and to reporting when directed. Guides that state a flat “30 days to complete the investigation” have merged the two and invented a third.

The ASHA Tribunal runs in parallel, not instead

The Anti-Sexual Harassment Act 2022 (Act 840) received Royal Assent on 8 October 2022 and was gazetted on 18 October 2022. Commencement came in two stages, and the widely repeated date of 1 August 2023 is not one of them: P.U.(B) 113/2023 brought ss.1, 2, 24, 25 and 26 into force on 28 March 2023, and P.U.(B) 77/2024 brought ss.3 to 23 and s.27 into force on 8 March 2024. The Tribunal provisions are therefore operative from 8 March 2024, and by s.7(2) a complaint must concern harassment occurring after commencement.

Section 3 establishes the Tribunal for Anti-Sexual Harassment. Its jurisdiction under s.7(1) is to hear any complaint of sexual harassment made by any person — it is not an employment tribunal, and there is no requirement of an employment relationship. Any person may lodge a complaint under s.10 in the prescribed form with the prescribed fee. Section 7(3) subjects complaints to the Limitation Act 1953 without prescribing a period of its own.

Remedies under s.20(1): an order to issue a statement of apology; where the harassment was in public, an order to publish it; an order to pay compensation or damages not exceeding RM250,000; and an order to attend a programme. Awards are final and binding, deemed an order of court, and challengeable in the High Court only for serious irregularity under s.23. Non-compliance within thirty days is an offence under s.21, carrying a fine of twice the compensation ordered — or up to RM10,000 where none was ordered — imprisonment up to two years, or both, plus up to RM1,000 a day while it continues.

Here is the point employers get wrong. Section 8 excludes only the jurisdiction of a court. Where a Tribunal complaint is lodged, the same issues between the same parties cannot be litigated in any court, unless the court proceedings began first, the conduct constitutes a crime, or the Tribunal complaint is withdrawn or struck out. Section 27 expressly preserves the right to lodge a police report.

Act 840 says nothing at all about an employer’s internal or domestic inquiry, nothing about the Employment Act, and nothing about Part XVA. There is no election of remedies between them and no power for the Tribunal to stand down because a workplace inquiry is running. A domestic inquiry is not a proceeding “in any court”. So the s.81B duty to inquire is unaffected by a Tribunal filing — an employer who suspends its investigation because the complainant has gone to the Tribunal is exposed under s.81F while gaining nothing.

The definitions also differ. Act 840 defines sexual harassment as unwanted conduct of a sexual nature in any form which is reasonably offensive or humiliating or a threat to wellbeing. The Employment Act s.2 definition omits both those words and adds a requirement that the conduct arise out of and in the course of employment. Act 840 is the broader test, and it has no employment nexus at all.

Common mistakes

No notice on the wall. Section 81H is continuous and independently enforceable.

Treating a refusal as informal. It must be in writing, with reasons, within 30 days, and only on one of the two s.81B(3) grounds.

Suspending the internal inquiry because of a Tribunal complaint. Section 8 of Act 840 bars court proceedings, not an employer’s inquiry.

Suspending an accused without wages for more than two weeks. Section 81C caps it.

Citing 1 August 2023 as the ASHA commencement date. The operative dates are 28 March 2023 and 8 March 2024.

Assuming the two definitions are the same. Conduct outside the course of employment can found a Tribunal complaint and fall outside the EA definition.

What’s next

Put the s.81H notice up today if it is not up. Then write down, in one page, who receives a complaint, what happens in the first 30 days, and who signs a refusal — because the duties that carry a RM50,000 fine are procedural, and procedure is what fails under pressure. The section-by-section context sits in the Employment Act guide.