In forceUpdated to 1 Aug 2023

Contents

Employment Act 1955 · Updated to 1 Aug 2023 · Part XV · Complaints and Inquiries

81. Right of employee to appear before Director General

No employer shall prevent or attempt to prevent any employee from appearing before the Director General in pursuance of this

Part.

Part XVa

SEXUAL HARASSMENT

Interpretation 81a. For the purpose of this Part, “complaint of sexual harassment”

means any complaint relating to sexual harassment made—

(i)

by an employee against another employee;

(ii)

by an employee against any employer; or

(iii)

by an employer against an employee.

Inquiry into complaints of sexual harassment 81b. (1) Upon receipt of a complaint of sexual harassment, an employer or any class of employers shall inquire into the complaint in a manner prescribed by the Minister.

(2)

Subject to subsection (3), where an employer refuses to inquire into the complaint of sexual harassment as required under subsection (1), he shall, as soon as practicable but in any case not later than thirty days after the date of the receipt of the complaint, inform the complainant of the refusal and the reasons for the refusal in writing.

(3)

Notwithstanding subsection (2), an employer may refuse to inquire into any complaint of sexual harassment as required under subsection (1), if—

(a)

the complaint of sexual harassment has previously been inquired into and no sexual harassment has been proven;

(b)

the employer is of the opinion that the complaint of sexual harassment is frivolous, vexatious or is not made in good faith.

(4)

Any complainant who is dissatisfied with the refusal of the employer to inquire into his complaint of sexual harassment, may refer the matter to the Director General.

(5)

The Director General after reviewing the matter referred to him under subsection (4)—

(a)

if he thinks the matter should be inquired into, direct the employer to conduct an inquiry; or

(b)

if he agrees with the decision of the employer not to conduct the inquiry, inform the person who referred the matter to him that no further action will be taken.

Findings of inquiry by employer 81c. Where the employer conducts an inquiry into a complaint of sexual harassment received under subsection 81b(1) and the employer is satisfied that sexual harassment is proven, the employer shall—

(a)

in the case where the person against whom the complaint of sexual harassment is made is an employee, take disciplinary action which may include the following:

(i)

dismissing the employee without notice;

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(ii)

downgrading the employee; or

(iii)

imposing any other lesser punishment as he deems just and fit, and where the punishment of suspension without wages is imposed, it shall not exceed a period of two weeks; and

(b)

in the case where the person against whom the complaint of sexual harassment is made is a person other than an employee, recommend that the person be brought before an appropriate disciplinary authority to which the person is subject to.

Complaints of sexual harassment made to the Director General 81d. (1) If a complaint of sexual harassment is made to the

Director General, the Director General shall assess the complaint and may direct an employer to inquire into such complaint.

(2)

The employer shall inquire into the complaint of sexual harassment when directed to do so under subsection (1) and submit a report of the inquiry to the Director General within thirty days from the date of such direction.

(3)

If a complaint of sexual harassment received by the Director

General is made against an employer who is a sole proprietor, the Director General shall inquire into such complaint himself in a manner prescribed by the Minister.

(4)

Upon inquiry by the Director General of the complaint of sexual harassment under subsection (3), the Director General shall decide if sexual harassment is proven or not and such decision shall be informed to the complainant as soon as practicable.

(5)

Notwithstanding subsection (3), the Director General may refuse to inquire into any complaint of sexual harassment received under subsection (3), if—

(a)

the complaint of sexual harassment has previously been inquired into by the Director General and no sexual harassment has been proven; or

(b)

the Director General is of the opinion that the complaint of sexual harassment is frivolous, vexatious or is not made in good faith.

(6)

Where the Director General refuses to inquire into the complaint of sexual harassment received under subsection (3), he shall, as soon as practicable but in any case not later than thirty days after the date of the receipt of the complaint, inform the complainant of the refusal and the reasons for the refusal in writing.

Effects of decisions of the Director General 81e. (1) Where the Director General decides under subsection 81d(4)

that sexual harassment is proven, the complainant may terminate his contract of service without notice.

(2)

If the complainant terminates the contract of service under subsection (1), the complainant is entitled to—

(a)

wages as if the complainant has given the notice of the termination of contract of service; and

(b)

termination benefits and indemnity, as provided for under the Act or the contract of service, as the case may be.

Offence 81f. Any employer who fails—

(a)

to inquire into complaints of sexual harassment under subsection 81b(1);

(b)

to inform the complainant of the refusal and the reasons for the refusal as required under subsection 81b(2);

(c)

to inquire into complaints of sexual harassment when directed to do so by the Director General under paragraph 81b(5)(a) or subsection 81d(2); or

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(d)

to submit a report of inquiry into sexual harassment to the Director General under subsection 81d(2);

commits an offence and shall, on conviction, be liable to a fine not exceeding *fifty thousand ringgit.

Terms defined in s 2

contract of service
Defined · s 2
“contract of service” means any agreement, whether oral or in writing and whether express or implied, whereby one person agrees to employ another as an employee and that other agrees to serve his employer as an employee and includes an apprenticeship contract;
Open s 2
Director General
Defined · s 2
“Director General” means the Director General of Labour appointed under subsection 3(1);
Open s 2
employee
Defined · s 2
“employee” means any person or class of persons— (a) included in any category in the First Schedule to the extent specified therein; or (b) in respect of whom the Minister makes an order under subsection (3) or section 2a;
Open s 2
employer
Defined · s 2
“employer” means any person who has entered into a contract of service to employ any other person as an employee and includes the agent, manager or factor of such first mentioned person, and the word “employ”, with its grammatical variations and cognate expressions, shall be construed accordingly;
Open s 2
Minister
Defined · s 2
“Minister” means the Minister charged with the responsibility for human resources;
Open s 2
sexual harassment
Defined · s 2
“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;
Open s 2
wages
Defined · s 2
“wages” means basic wages and all other payments in cash payable to an employee for work done in respect of his contract of service but does not include— (a) the value of any house accommodation or the supply of any food, fuel, light or water or medical attendance, or of any approved amenity or approved service; (b) any contribution paid by the employer on his own account to any pension fund, provident fund, superannuation scheme, retrenchment, termination, lay-off or retirement scheme, thrift scheme or any other fund or scheme established for the benefit or welfare of the employee; (c) any travelling allowance or the value of any traveling concession; (d) any sum payable to the employee to defray special expenses entailed on him by the nature of his employment; (e) any gratuity payable on discharge or retirement; or (f) any annual bonus or any part of any annual bonus;
Open s 2

Report

Read on from s 81g

Part XVI

Procedure

Read on from Part XVI

Part XVII

Read on from Part XVII

Part XVIII

Regulations

Read on from Part XVIII

Part XIX

Repeal and Saving

Read on from Part XIX