PUTRAJAYA, June 2 ― The Federal Court today in a landmark ruling upheld a High Court decision in a sexual harassment case between former two employees of the Lembaga Tabung Haji (LTH), paving the way for sexual harassment suits to be heard in a civil court beyond the current narrow limits dictated by the Employment Act.
A five-judge Bench chaired by the Chief Judge of Malaya, Tan Sri Zulkefli Ahmad Makinudin ruled in favour of the female victim who had sued her male manager for sexual harassment in 2009. Both victim and perpetrator are no longer working in LTH.
“Having perused the evidence, we see no reason to disturb the learned judge's decision to dismiss main suit.
“We are also of the view that high court decision must be affirmed but based on the tort of sexual harassment. The ingredients of sexual harassment was present in abundance,” Federal Court Justice Tan Sri Suriyadi Halim Omar, who read out the judgement, said.
In the unanimous decision, Suriyadi said the element of sexual harassment was evident between the perpetrator and victim, and that it eventually resulted in the latter’s emotional and mental trauma.
“The ingredients of sexual harassment are present, in abundance, namely the existence of a persistent and deliberate course of unreasonable and oppressive conduct targeted at another person (in this case the respondent), calculated to cause alarm, fear and distress to that person.
“This conduct is heavily spiced with sexual hallmarks as illustrated by the continuous leery and obscene verbal remarks uttered by the appellant, which culminated in the respondent displaying symptoms of emotional distress, annoyance and mental depression due to the alarm, fear and anxiety,” he said.
In his concluding remarks, Suriyadi said that sexual harassment was a “serious misconduct” in whatever shape or form, and “cannot be tolerated”.
“Perpetrators who go unpunished, will continue intimidating, humiliating and traumatising the victims thus resulting, at least, in an unhealthy working environment,” he said.
The male appellant, then an LTH Risk Management Department general manager, had initially sued his female subordinate claiming that the sexual harassment complaint she lodged was defamatory towards him and was purportedly the reason why his work contract had not been renewed.
In her submission, the victim had said that the appellant asked her to be his second wife, compared a man’s potency to coconuts and asked her if she preferred being in a relationship with married men.
She subsequently counter-sued him for sexual harassment, claiming the incident had caused her serious emotional, mental stress and trauma.
An inquiry set up by LTH afterwards found insufficient evidence to exact disciplinary action against the appellant, and he was slapped with only a strong reprimand from the firm’s human resource department, while the respondent was transferred to another division.
High Court’s Justice Amelia Tee Abdullah in her decision on September 2012 had dismissed the appellant’s claim and allowed the respondent’s counterclaim, awarding her RM120,000 in total for damages.
The appellant then appealed the case in the Court of Appeal, where a three-man panel led by Justice Datuk Zaharah Ibrahim on December last year also upheld the High Court judge’s decision.
* Editor’s note: An earlier version of this story misreported the lawsuit as between a female employee against Lembaga Tabung Haji. Malay Mail Online apologises for the error, which has since been corrected.
