The Court of Appeal states that changing the basis of dismissal from 'sexual harassment' to just 'harassment' seriously affected the burden of proof.
PUTRAJAYA: A leading tobacco company has failed to overturn a ruling ordering it to compensate its former national security manager for unfair dismissal over allegations that he made inappropriate physical contact with a female employee at a private club.
A Court of Appeal bench chaired by Justice Azhahari Kamal Ramli noted that Tobacco Importers and Manufacturers Sdn Bhd removed the word “sexual” from its pleadings and relied only on “harassment” as the basis for the dismissal before the Industrial Court.
“We are of the view that omitting the word ‘sexual’ had serious repercussions on the burden of proof against the respondent . “The appeal is dismissed as there is no appealable error by the Industrial Court or the High Court,” he said in ordering the company to pay RM25,000 in costs to the respondent. Justices Ahmad Kamal Shahid and Ahmad Shahrir Salleh also sat on the bench.
On Nov 23, 2019, the company held its annual dinner at a hotel in Kuala Lumpur, where subsidised alcoholic beverages were served and consumed by both the respondent and the complainant. After the function, between 30 and 40 people, including the respondent and the complainant, adjourned to a private entertainment outlet known as the “Wicked Club” at the same hotel.
On Dec 6, 2019, the respondent was informed that the woman had filed a complaint alleging that he had touched her inappropriately without her consent at the club between 1am and 2am on Nov 24, 2019. A domestic inquiry followed, with the female employee claiming that the respondent’s conduct made her feel unsafe and uncomfortable.
At the Industrial Court, it was alleged that the respondent, while standing beside the woman, held the left side of her lower waist from behind in what was described as a semi-hug. The startled woman immediately told the respondent, “Do not touch me,” pushed his hand away, and walked off. The respondent denied the allegation.
The Industrial Court held that the company could not dismiss the respondent for sexual harassment after initially pleading only harassment as the basis for the dismissal. It also found that nothing in the company’s standard of business conduct covered employee behaviour outside the workplace. The Industrial Court subsequently ordered the company to pay the national security manager RM302,400 in compensation in lieu of reinstatement, along with back wages from Dec 1, 2018.
Last year, the High Court dismissed the company’s judicial review application seeking to quash the award. Lawyers VK Raj and SP Devi appeared for the respondent, while Janice Annie Leo Selvanathan and Adrienne Sena represented the employer.
Compensation Court Of Appeal Industrial Court National Security Manager Physical Contact Sexual Harassment Tobacco Company
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