THE Anti-Sexual Harassment Act 2022 (ASHA) which was gazetted on Oct 18, 2022 has taken effect since March 8, 2023.

The Tribunal for Anti-Sexual Harassment established pursuant to ASHA issued its first ever award recently involving physical sexual harassment by a male employer towards a female employee.

Under ASHA, the Tribunal may order the respondent or perpetrator to:

In its first ever award, the Tribunal ordered the respondent to issue an apology as requested by the complainant. The award was issued within 60 days from the first hearing date which was on May 23 this year in accordance with provisions under Section 19(1) of ASHA.

This is seen not merely as a legal victory but an ignition of a cultural transformation that fosters respect and zero tolerance for harassment.

The landmark award by the tribunal would encourage victims to come forward and for perpetrators to be responsible over any allegations of harassment.

Close door affair

As of June 8, only a total of four complaints of sexual harassment have been received by the Tribunal, according to Women, Family and Community Development Minister Datuk Seri Nancy Shukri. As the Tribunal has only issued one award to-date, its function remains under-utilised.

For all proceedings before the Tribunal, no party shall be represented by a lawyer at a hearing unless - in the opinion of the Tribunal - the matter in question involves complex issues of law.

If one party is allowed to be represented by a lawyer, the other party shall also be so entitled. All hearings before the Tribunal are also closed to the public. Confidential proceedings can encourage victims to come forward and report incidents of harassment without fear of public exposure or stigma.

However, unlike the Employment Act 1955 which holds employers accountable for failing to investigate sexual harassment complaints, the Tribunal only has the authority to order remedies against individual perpetrators.

It provides a quick, powerful and cost-effective way to seek justice while holding perpetrators accountable. Any party to the proceedings of the Tribunal may apply to the High Court to challenge an award in the proceedings only on the ground of serious irregularity affecting the award.

While ASHA 2022 is not only confined to sexual harassment in the workplace, it is paramount for employers to have stringent policies to deal with sexual harassment at work because the Tribunal can summon any other person to attend the hearing to give evidence.

This would include a sexual harassment complaint that relates to conduct at work or conduct between colleagues.

Henceforth, employers should establish a comprehensive sexual harassment policy that defines what constitutes harassment, outlines reporting procedures and specifies the consequences for violators.

Further, ASHA does not prevent employees from filing a claim before the Tribunal even if they have already filed an internal grievance complaint with the employer and regardless of the outcome of the internal investigation.

As the implementation of ASHA 2022 is still in its infancy stage, it remains to be tested whether the non-compliance of the Tribunal’s award - such as issuing apology statement, paying compensation or attending a programme - could be enforced effectively. - Sept 10, 2024

Leonard Yeoh is a partner and Pua Jun Wen an associate with the law firm, Tay & Partners. 

https://focusmalaysia.my/maiden-sexual-harassment-case-under-asha-2022-male-boss-to-issue-apology-to-employee/