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Wednesday, August 26, 2015

Court to make landmark ruling on sexual harassment suit by ex-Tabung Haji employee

A former senior officer at Tabung Haji is seeking to overturn a court ruling which found him liable for sexual harassment against an ex-colleague. – The Malaysian Insider file pic, August 26, 2015.A former senior officer at Tabung Haji is seeking to overturn a court ruling which found him liable for sexual harassment against an ex-colleague. – The Malaysian Insider file pic, August 26, 2015.
The Federal Court will today hear a civil dispute brought by a former employee of Lembaga Tabung Haji, who is seeking to set aside a judgment which found him liable for sexual harassment against an ex-colleague.
Reputed to be the first case of its kind in Malaysia, the former general manager of Tabung Haji's risk management division, Mohd Ridzwan Abdul Razak, said there is no law to provide a remedy for civil claims on sexual harassment.
The Federal Court had earlier granted him leave to appeal against the Court of Appeal ruling.
The complainant, Asmah Mohd Nor, is relying on a common law principle to sustain the judgment obtained from the High Court and the Court of Appeal, as Malaysia does not have written legislation against such claims.
At present, sexual harassment is a criminal offence under the Penal Code, while under the Employment Act, the aggressor could be sacked if found guilty.
Asmah's counsel Datuk David Morais said the Federal Court verdict will decide whether the common law could now be applied to Malaysia to protect sexual harassment victims.
Ridzwan is arguing that common law cannot be applied in Malaysia and she has no remedy and the Court of Appeal had erred in affirming the High Court ruling.
In 2012, High Court judge Amelia Tee Hong Geok Abdullah awarded Asmah RM120,000 in damages, after she proved that the incident had left her traumatised, as testified by psychiatrist, Dr Azahar Zain.
"The Court is of a view that a strong message must be sent to all those persons in Ridzwan's position, who think that just because they are the 'boss', they can say whatever they like, to whoever they like, however many times they like without fear of repercussions," the judge had said.
In the meantime, the High Court had also dismissed Ridzwan's claim for defamation.
Last year the Court of Appeal which upheld the High Court's decision, further noted that the Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace formulated by the government in 1999, did not have a force of law.
"The vulgar and sexually-explicit words complained of by Asmah clearly would be sexual harassment in the form of verbal harassment. However, the Code of Practice does not have force of law, especially not as between co-workers as in the case before us," the appellate court said.
Asmah joined Tabung Haji in 2008 as a senior manager in its risk management division, which was headed by Ridzwan.
Two months into her job, she began to feel uncomfortable about his behaviour and obscene jokes, comments and emails, even asking her to be his second wife on three occasions.
Among other instances, Ridzwan had asked Asmah to perform special prayers in order to have "erotic dreams" to know who she will get married to.
A year later, she lodged a complaint with the company and after an inquiry, Ridzwan was given an administrative warning.
Asmah was then transferred to the legal department, where she claimed to be given menial tasks demeaning to her.
Following a second inquiry after she complained to Tabung Haji's legal adviser, Ridzwan was given a "serious administrative warning".
Asmah, in the meantime, was suffering from clinical depression and was officially diagnosed two years after the incident, despite the counselling sessions arranged by the company for her.
Ridzwan then filed a defamation suit against Asmah after his contract with the company was not extended, seeking RM500,000 in damages, and denied the allegations of sexual harassment.
Asmah, who has since left Tabung Haji, filed a counter suit, saying that the non-renewal of his contract had nothing to do with her complaint and is also seeking damages for the mental and emotional pain she suffered throughout her ordeal.
- TMI

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