Md Nor Bin Kassim v Malayan Banking Bhd [2017] MLJU 656

Court of Appeal (Putrajaya)

Sexual Harassment at the Workplace

2.  On 28 January 2010, Rohaida binti Kamarudin (COW1), the Respondent’s staff, had lodged a verbal report that the Appellant had sexually harassed her.

3.  On 1 February 2010 and 17 February 2010, COW1 lodged two (2) police reports respectively about the alleged sexual harassment, which are as follows:

(a)  the Appellant had sent a few Short Message Services (SMS) several times containing inappropriate words such as “I love you”

(b)  the act of the Appellant lending a book entitled “Rahsia Kehebatan Lelaki” to COW1

4. Therefore, the Respondent investigated the alleged misconducts of the Appellant in response to these allegations.

5. The investigations revealed that COW1 was not the only victims of the alleged sexual harassment by the Appellant.

6.  It was revealed that other female staff suffered similar harassment but did not report the incident because they feared that the Appellant might victimise them as he is one of the bank’s superior.

7. On 9 February 2010, the Respondent issued a suspension letter due to the alleged sexual harassment misconduct by the Appellant. The suspension letter took effect on 10 February 2010.

8. On 9 February 2010, Respondent sent a suspension letter to the Appellant due to the alleged sexual harassment misconduct by the Appellant. The suspension began on 10 February 2010 and pending until the Respondent’s Domestic Disciplinary Inquiry (DI) concluded its investigation into disciplinary actions taken against the Appellant.

9.  The DI found that the Appellant was guilty of grave misconduct and dismissed him from the service effective 22 August 2010.

10.  Then, the Appellant, who was dissatisfied with his dismissal, referred the matter to the Industrial Relations Department (IRD).  IRD then referred such matter to the Minister, and accordingly the same matter was brought to the Industrial Court.

11.  The Industrial Court had dismissed the Appellant’s case without just excuse and ordered the Appellant to be reinstated to his former position as the Branch Manager at MBB.

12.  Therefore, the Respondent appealed to the High Court and applied for judicial review application including the issuance of a writ of certiorari to quash the decision of the Industrial Court.

13.  The learned High Court found that the learned Industrial Court Chairman was erred by law in deciding the award for the Appellant.

14.  The learned High Court found that the learned Industrial Court had failed to consider the material facts and evidence against the Appellant.

15. The Appellant then appealed to the Court of Appeal for the judicial review application as he was not satisfied with the learned High Court Judge’s decision.

2. Whether the learned Industrial Court Chairman had committed serious errors of law in disregarding the weight of evidence in relation to the misconduct of the Appellant?

1.  Definition of sexual harassment

(a)  Sexual harassment based on the Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace 1999 (the Code) is defined as-

” any unwanted conduct of a sexual nature having the effect of verbal, non-verbal, visual, psychological or physical harassment:

–        that might be reasonable grounds be perceived by the recipient as placing a condition of a sexual nature on her/his employment; or

–        that might, on reasonable grounds, be perceived by the recipient as an offence or humiliation, or threat to his/her well-being, but has no direct link to her/his employment.”

(b)  In the Federal Court case of Mohd Ridzwan Abdul Razak v Asmah Hj Mohd Nor [2016] 6 CLJ 346 had decided that, although the Code did not been enforced legally and gave a legal cause of action against the sexual perpetrator; however, the Code can be implemented as a guidance by the employers in preventing the sexual harassment from prevailing in the workplace.

(c)  In the present appeal, the Court also referred to the Court of Appeal case of Syarikat Kenderaan Melayu Kelantan Bhd v Transport Union [1995] 2 CLJ 748, in which the Court of Appeal decided that the High Court must only concern with the decision-making process, not the merits of the decision itself when exercising its supervisory jurisdiction in a judicial review application from an Industrial Court.

(d)  Hence, the aforementioned decision has been affirmed by the learned judges in the Court of Appeal case of Ketua Pengarah Buruh v Britania Brands (Malaysia) Sdn Bhd [2010] 6 CLJ 370. The judge decided that the judicial review remedy should be concerned with reviewing the decision of the Court rather than the merits of the decision in relation to the application of judicial review from the lower court.

(e)  By applying such principle to the present appeal case, the Court of Appeal decided that the High Court judge must focus on how the decision was made when reviewing the decision of the Industrial Court as a quasi-judicial body. It means that the Court should focus on the process of how the decision has been made, not the outcome of the decision.

(f)  Therefore, in the judicial review application, the Court had decided that the learned High Court judge had found a specific finding that the learned Industrial Court Chairman had erred in determining that the evidence of the sexual harassment is required to be corroborated to be used against the Appellant.

(g)  The High Court judge also found that the impugned SMS and telephone messages sent by the Appellant to COW1 were explicitly offensive as the same consist of sexual character.  Therefore, it was irrelevant for the learned Industrial Court judge to consider that COW1 did not suffer any injuries due to the misconduct of the Appellant.

(h)  The learned judge of the Industrial Court decided that there was no improper misconduct by the Appellant towards COW1, which amounted to sexual harassment. It was decided based on the fact that the book of “100 Rahsia Kehebatan Lelaki” lent by the Appellant to COW1 was not an act of sexual harassment because COW1 did not feel discomfort or insulted upon receiving such book.

(i)  Such decision at the learned Industrial Court judge is also based on the reasoning that COW1 kept the book for one week and informed the contents of the book to COW3, her husband, although she denied having read the book.

(j)  Moreover, the learned Chairman found that the alleged obscene of SMS messages from the Appellant to COW1 that occurred from 2008 until 2009 which contained the phrase “I love you” was motivational and there was no evidence suggesting that similar SMS was not sent to any other staffs. As such, COW1 was the only recipient of such SMS.

(k)  In addition, the findings of the learned Chairman were in fact findings of fact which were done based on the credibility of the witnesses, in which the Court may not reverse the factual findings unless it were illogical or unreasonable that no other tribunal could have reached similar finding in such similar circumstances.

(l) Nevertheless, in the present appeal, the Court of Appeal disagreed with the findings of the learned High Court judge who viewed the Appellant’s conduct towards COW1 was amounting to sexual harassment.

(m)  Consequently, the behaviour of COW1 when receiving such book did not indicate that she was despised and felt harassed by the Appellant’s conduct.  She would not have kept the book, however, the evidence indicated that she kept the book for one week and only returned the book when the Appellant requested it. Furthermore, she discussed the contents of the book with COW3.

(n) Hence, the Court agreed on the findings of fact decided by the Industrial Court’s Chairman, who had seen and heard the witnesses regarding the alleged sexual harassment which there were inconsistencies and uncertainties in the evidence of COW1 that required corroboration of other witnesses.

Whether the learned Industrial Court Chairman had committed serious errors of law in disregarding the weight of evidence about the misconduct of the Appellant

1.  Finding of facts based on the credibility of witnesses

(a)  In the Court of Appeal case of Colgate Palmolive (M) Sdn Bhd v Yap Kok Foong & Another Appeal [2001] 3 CLJ 9, it was held that the fact of finding based on the credibility of witnesses is not subject to judicial review.

(b)  The Federal Court case of Petroliam National Bhd v Nik Ramli Nik Hassan [2003] 4 CLJ 625 had decided that in the judicial review process, the learned judge must restrain himself from disturbing the established facts unless the facts could be shown on the grounds of illegality or plainly irrational.

(c)  In the present appeal, the Court of Appeal held that there were no grounds for illegality and irrationality regarding sexual harassment by the Appellant against COW1 based on the finding of facts by the Chairman.

(d)  The Court also found that the Chairman had applied proper facts and law, including considering the whole circumstances of the professional relationship between the witnesses and the Appellant.

(e)  Also, the Court held that the other reasonable tribunal would have arrived at the same decision based on similar circumstances, hence, the Court viewed the intervention of the finding facts by the learned High Court judge was erred in law.

Key Take Away

2.  It is understandable if the complainant is unable to provide credible witnesses or any corroborative evidence in supporting the claims, however, the absence of the corroborative evidence does not invalidate the claim of the sexual harassment by the complainant.