Victim’s Conduct or Perceived Reciprocity in Sexual Harassment Cases
Section 2 of the Employment Act 1955 provides the definition of “sexual harassment” as follows:
“Sexual harassment means any unwanted conduct of a sexual nature, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is offensive or humiliating or is a threat to his well-being, arising out of and in the course of his employment.”
While the state of mind of the victim is a crucial factor in sexual harassment cases, the Industrial Court may also take the victim’s conduct into consideration in determining whether an employee’s dismissal was with just cause and excuse.
This article explores the extent to which a victim’s conduct or perceived reciprocity may influence the Court’s assessment of alleged sexual harassment.
Case Analysis
When it comes to sexual harassment cases, silence or rather, passive tolerance on the part of the victim does not mean acquiescence or consent (Harry Wong Wei Chen v. Petroliam Nasional Berhad (Petronas) [2021] 1 ILR 340).
On the contrary, the victim’s act of reciprocity may be seen as detrimental and perceived differently by the courts. This can be viewed from the cases below.
In the case of Sunway Lagoon Club Bhd v Md Noh Mat Tahir [2007] 2 ILR 273, the Industrial Court held that the dismissal was without just cause and excuse based on the conduct of the complainant. Specifically, the complainant had coffee with the alleged assailant after the alleged assault and took a ride home from the said alleged assailant. In this regard, the Court held as follows:
“[63] It is in evidence that after the alleged incident, the complainant followed the claimant to the Palms coffee-house where they had a coffee each. As evidenced by the receipt (p. 2 of CLB) they were there from 9.22pm to 10.05pm, which is for some 43 minutes. Is this conduct consistent with that of a person who has just been sexually assaulted? Will a victim of an assault sit down with her assailant in a coffee-house immediately after the assault and drink coffee for 43 minutes? Are these the actions of a person who is “shocked and embarrassed” over the assault?
[64] After leaving the coffee-house, the complainant said that she tried to phone her brother. Then she went to her locker and tried to call her mother to give her a ride home. The court notes that at this point, the time would be way past 10pm. According to the complainant, when she was unable to get her family members to fetch her home, she thought of asking the claimant for a ride home. Coincidentally, the claimant was walking by at the time and the complainant asked and was in fact given a ride home. Once again, the court questions whether this is conduct consistent with that of a girl who has just been sexually harassed. Is the complainant so naive as to ask for a ride home in the car of a person who has just sexually assaulted her? To put herself in a car, late at night, with her sexual assailant, would have been foolhardy in the extreme and quite beyond belief.”
In Lam Siew Ling v Aerodome Sdn Bhd [2019] 2 LNS 3007, the Industrial Court held that the Claimant failed to make out a case of sexual harassment against the employee on the ground that there was no evidence to show that she did not welcome the employee’s behaviour. Further, the Industrial Court considered the fact that the complainant was more than comfortable in confiding with the alleged perpetrator on her marital problems and even initiated a conversation with regards to her pants’ zip malfunctioning after she had supposedly felt shocked and disgusted with the way the alleged perpetrator behaved towards her during the Singapore airshow trip in February 2018. The relevant excerpt is as follows:
“[47] Upon analysing the evidence produced before this Court, the Claimant has failed to satisfy the requirements for a sexual harassment case to be made. There was no evidence forthcoming from the Claimant to show that she did not welcome the Claimant’s behaviour. In fact, it is perplexing that on one hand the Claimant alleges that Ilyas was sexually harassing her, yet on the other hand there are overwhelming evidence that she was more than comfortable in confiding with the alleged perpetrator on her marital problems and even initiating a conversation with regards to her pants’ zip malfunctioning and all these even after she had supposedly felt shocked and disgusted with the way Ilyas behaved towards her during the Singapore airshow trip in February 2018.”
Lastly, in Subramaniam Palan v. Kwantas Oil Sdn Bhd (MPOM) [2010] 2 LNS 1230, the Industrial Court held that the Company failed to discharge its legal burden of proof with regard to the charges involving sexual harassment and the Claimant’s dismissal was without just cause or excuse. In particular, the Court considered the conduct of the complainant wherein she continued to enter the alleged perpetrator’s room even when he was without his shirt, instead of walking away and reporting the matter straight away to her superior or the security guard on duty. Further, when the complainant was asked to massage the alleged perpetrator from his back, she followed his instructions and allegedly massaged him from his head and neck only. The relevant excerpt is as follows:
“Based on the above it is my view that the testimony of COW-1 during examination in chief is not credible because firstly:-
(i) when she was allegedly informed by CLW-2 to enter his room and saw that he was without his shirt (dia sedang tanggal baju) she should not have even entered his room half way. She should have walked away and reported the matter straight away to her superior or the security guard on duty. This she did not do;
(ii) when CLW-2 allegedly held her hand while sitting on his bed and pulled her towards him of allegedly wanting to kiss her there is no evidence that she struggled to walk away from him but instead her reaction was she “saya tahan dan tanya kenapa dia buat begitu”. Further, when CLW-2 asked COW-1 to allegedly massage him in front she refused but when she was asked to massage him from the back she followed his instructions and allegedly massaged him from his head and neck only. After that she was asked by CLW-2 to stop but there is no evidence that she refused to do it…”
Takeaway
The cases discussed above serve as a caution to employees who experience sexual harassment to avoid engaging in any behavior that could be perceived as encouraging and/or reciprocating the perpetrator’s conduct. While a victim of sexual harassment may not have the intention of reciprocating, such conduct may be interpreted or perceived differently by the courts.
That being said, every complaint of sexual harassment must be taken seriously and addressed promptly by employers. Employers are legally obliged to inquire into any complaint of sexual harassment (save for the exceptions under section 81B(3) of the Employment Act 1955) and take appropriate measures to ensure a safe work environment.
If you are a victim of sexual harassment or an employer investigating such allegations, it is advisable to seek legal advice to ensure that the matter is handled appropriately and in accordance with the law.
[This article is written by Vinhothinii Rajoo, Partner at Vinho & Co who specialises in Employment Law and Industrial Relations. The information contained in this article does not constitute legal advice or a legal opinion and should not be relied as such.]