Workplace Bullying: Potential Remedies For Victims (PART 1 – Civil Remedies)

Co-authored by Cynthia Lee* and Amanda Pang.

Sometime in October 2020, we published an article exploring the remedies available to employees who have been sexually harassed at the workplace. In this two-part article, we will be examining the remedies available against non-sexual forms of harassment at the workplace i.e. verbal harassment, supervisory harassment, physical harassment etc.

In Part 1, we will discuss the potential remedies available to victims at the industrial and civil courts; including claiming for financial compensation via claims for constructive dismissal, breach of contract and tort of harassment/assault.

In Part 2, we will discuss the remedies available under the Penal Code which involves criminal prosecution, before proceeding to compare the protections afforded to non-sexual harassment victims in other (commonwealth) countries such as the United Kingdom and Singapore.

RECOGNITION OF NON-SEXUAL HARASSMENT IN MALAYSIA

Unlike ‘sexual harassment’ which is defined in the Employment Act 1955 (“EA“), ‘harassment’ is not specifically defined in any legislation in Malaysia. Courts, however, have long since recognized a variety of non-sexual behaviour as constituting harassment.

In the case of Malaysia Airline System Berhad v Wan Sa’adi Wan Mustafa [2008] 4 ILR 72 for example, the Industrial Court defined harassment as:-

“…Unwelcome behaviour which has the effect of offending, humiliating or intimidating the person at which the behaviour is directed. It may include behaviour by a person, or a group of people, which involves them using power inappropriately over subordinate(s) or colleague(s) at work. It can also include the distribution or publication of racist or sexist materials, verbal abuse, racist or sexist jokes or other comments that negatively stereotype, threats or physical assaults…”

PART A: LEGAL REMEDIES

INDUSTRIAL COURT REMEDIES

1. Resign and claim Constructive Dismissal

In a majority of cases, the preferred remedy for victims of workplace harassment is to leave employment. This is especially so in situations where informal remedies such as (i) confronting the offender (ii) complaining to the HR department/trade union representative or (iii) having the company conduct a domestic inquiry, is inadequate.

Before deciding on an action plan, employee victims may benefit from the knowledge that – you may in some circumstances (involuntarily) resign and claim compensation from the employer. This can be done by filing a case of constructive dismissal against the employer for breach of the employment contract.

Requirements

The case of Govindasamy Munusamy v Industrial Court Malaysia & Anor [2007] 10 CLJ 266 sets out the elements required for employee victims (Claimant) to plead constructive dismissal, as follows :-

In some cases, the employment contract or company policy will contain a clause that stipulates the employer’s duties to the employee such as a duty to provide safe and conducive work environment. Such clauses can be used by employee victims as a ground to establish contractual breach by the employer.

Even if there are no such express clauses to be found, all employment contracts carry with it an implied duty of mutual trust and confidence between employer and employee. (Implied terms are terms that although not expressed in the contract, is assumed into the contract because it is so obvious.) That means an employer’s failure to tackle harassment at the workplace can amount to a breach of mutual trust and confidence, which in turn amounts to breach of the employment contract.

Not only that, employers can be held vicariously liable for the acts of its employees, including its partners/managers/supervisors, etc. Thus, employees who have been harassed not by their direct employer but by their co-workers or intermediaries, may also sue the employer for harassing conduct committed by others during the course of their employment. (See Shalini P Shanmugam & Anor v Marni bte Anyim [2007] 4 MLJ 80; Khaw Yao Shun v Petroliam Nasional Bhd (Petronas) [2019] 4 ILJ 5)

Breach must be fundamental

However, not any breach of duty or breach of contractual term will suffice. The employee victim must prove that the breach alleged amounts to “a fundamental breach which goes to the root of the contract, or that it illustrates the employer’s intention of not wanting to pursue the contractual relationship anymore” (Anwar Abdul Rahim v. Bayer (M) Sdn Bhd [1998] 2 MLJ 599).

Remedies available

If the Industrial Court finds that the employee has established a case of constructive dismissal (i.e the victim’s dismissal was ‘without just cause and excuse’), then the Court may grant the employee the following remedies :

(a) reinstatement of the employee to his previous position (unlikely in the context of harassment);

(b) back wages; or

(c) compensation in lieu of reinstatement and back wages.

In some cases, the Industrial Court has even awarded punitive compensation (which is of a higher sum than simple compensation) (Prasanna Kumari Gobi v Malaysian Airline System Bhd [2012] 4 ILR 419).

Depending on the circumstances, victims should ensure to have their ducks in a row before leaving employment as it may be difficult to gain access to evidence/witnesses after resignation. Precautionary measures include mentioning the circumstances of the harassment/bullying in the notice of resignation/exit interview form.

CIVIL COURT REMEDIES

2. Sue for damages for breach of contract

Alternatively, employees who allege workplace harassment can sue for breach of contract at the civil court instead of the industrial court. This is less commonly exercised by employee victims, presumably because of the higher cost and complexity of the civil court process, entailing more out-of-court settlements.

However, where the complaint is harassment, remedies that can be granted by the civil court may be more befitting to the employee victim. Such remedies include injunctive orders preventing the harasser from continuing with the harassing conduct (remedies which are unavailable at the industrial court).

To succeed, the employee victim (Plaintiff) would have to establish that the employer has breached an express or implied term which goes to the root of the employment contract. (Example of a case where employee sues at the civil court for harassment: Shalini P Shanmugam & Anor v Marni bte Anyim [2007] 4 MLJ 80)

3. Claim compensation under tort

Another possible avenue for victims of harassment to seek redress is to claim compensation under tort. Generally, to succeed, employee victims (Plaintiff) must fulfil 4 elements: a) duty; b) breach of duty; c) causation and d) injury.

Whilst there is little jurisprudence on this area, there is a growing recognition by courts to accept claims of harassment under tort (Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor [2016] 4 MLJ 282).

(i) Tort of Harassment

Recently, in the case of Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor [2016] 4 MLJ 282, the Federal Court for the first time introduced the tort of harassment into Malaysia. Although the case primarily deals with sexual harassment, we think that the tort of harassment applies to non-sexual harassment cases.

To establish the tort of harassment, the employee victim must prove the following elements : –

⦁ There was a positive act/statement
⦁ The act/statement was deliberate
⦁ A reasonable man would think that the act/statement would cause some harm to the victim
⦁ Actual harm was suffered (Note: actual harm here need not be physical, it may include psychological distress, depression, etc.)

(ii) Tort of Assault

Briefly, this type of tort is actionable per se, which means that there is no need for the employee victim to show proof of damages. Such a tort is actionable simply because it happened.

Further to the above, the civil court can also hear claims on grounds of (i) negligence i.e. on the part of the employer and (ii) defamation.

To continue to criminal remedies for non-sexual harassment at the workplace, read (Part 2) of the article HERE (coming soon).

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*Cynthia Lee completed her studies in law at Cardiff University with an LLB Law (Hons) and the Bar Professional Training Certificate (BPTC). She is a dispute resolution lawyer at Messrs Chai & Co. and a member of the KL Bar Women’s Rights Committee.

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