Sex jokes may constitute sexual harassment at workplace, says court

 

The Industrial Court, in its award, commended Maybank for introducing clear policies which recognise that jokes of a sexual nature may amount to sexual harassment. (Facebook pic)

PETALING JAYA: 

An Industrial Court has upheld a bank’s decision to sack an officer found guilty on five counts of sexual harassment, saying a women’s modesty can never be fodder for a joke in the workplace.

Sarawak Industrial Court chairman Taufik Yusoff said it would be wrong to normalise jokes that may tend towards sexual harassment.

The claimant, who had been with Malayan Banking Bhd for 31 years, was sacked in December 2023 after the bank’s disciplinary board rejected his explanation when responding to a show cause letter.

Commending the bank for its action, Taufik noted that the financial institution’s policy clearly stated that jokes of a sexual nature are examples of sexual harassment.

He said any reasonable employer would have taken the same step of dismissing its employee to maintain its corporate image and ensure workplace harmony.

“There is no other punishment that suits the action perpetrated by the claimant against the complainant except a dismissal.

“It must also be observed that in a case of sexual harassment, the primary consideration of the court is the feeling of the victim when subjected to such an action towards her.

“It’s not what the harasser felt when carrying out the action, such as saying it was only a joke or that it is normal; unless there is reciprocal action by the complainant, which can reasonably be seen or implied to have also contributed to such actions,” he said in a recent award.

In this case, Taufik said, the claimant had failed to prove that the victim had responded in a way that suggested she had consented to the joke or was not offended, humiliated or intimidated by it.

“There is no evidence produced by the claimant to suggest that there were previous situations between him and the victim for the court to come to a positive finding that it was normal for them to engage in such a manner,” he said.

Taufik noted that when asked by the bank’s lawyer if the claimant’s actions towards the complainant were inappropriate, he said: “I disagree. It is normal for me. It is a joke and (was) spontaneous.”

The claimant had claimed that the complainant never explicitly told him to stop, which made him believe that the alleged harassment was construed only as friendly banter between them.

Taufik, however, said this was not sufficient defence in the circumstances of the case because the victim had thought she could handle the situation by herself.

He also pointed out that the claimant had admitted during cross-examination that, although the complainant did not tell him to “stop”, he understood that she objected through other words or means.

In the case, the claimant was accused of covertly taking photos of the complainant without her knowledge and of repeatedly asking her to join him for meals — including a candlelight dinner — which she had declined in the past.

He was also accused of sending her inappropriate texts, taking a photo of her backside and telling her he intended to purchase software that could remove her clothing from the picture, and another inappropriate remark about glue which she understood to have sexual overtones.

Andrew Lo of Sarawak Bank Employees’ Union represented the claimant while Gordon Tang appeared for Maybank. - FMT