Woman claiming constructive dismissal over sexual harassment loses appeal

 The Court of Appeal says there was no merit in the appeal as the alleged harassment did not go to the root of her employment contract.

The Court of Appeal has dismissed a woman’s claim of constructive dismissal against Kelab PJ in 2020, ruling that the Industrial Court’s decision was neither irrational nor unreasonable.

PUTRAJAYA:

 A former executive officer of a private recreational club failed in her claim of constructive dismissal, after the Court of Appeal rejected her allegation of sexual harassment prior to resigning six years ago.

In delivering the unanimous decision by a three-member bench, Justice Ahmad Kamal Shahid said there was no merit in the 41-year-old woman’s appeal.

“The alleged sexual harassment did not go to the root of the employment contract and the Industrial Court did not commit any appealable error,” he said.

Kamal said the High Court was correct in dismissing the woman’s judicial review application in 2024, since the Industrial Court’s rejection of her claim was neither irrational nor unreasonable.

Also on the panel that heard the appeal last week were Justices Zaini Mazlan, its chairman, and Ong Chee Kuan.

The Court of Appeal also ordered the appellant to pay Kelab PJ, her former employer, RM30,000 in costs.

Lawyer Farah Irina Khairi Izwan represented the club while Bhavanash Sharma and Gheetal Kaur acted for the appellant.

The facts showed that the woman had resigned on Sept 3, 2020, and had given one month’s notice.

Her claim of constructive dismissal was based on allegations of verbal abuse, threatening behaviour and sexual harassment levelled at three club officials shortly after she returned from maternity leave.

The Industrial Court, however, found that the woman did not lodge a formal complaint while still employed, and only raised the allegations in her resignation letter.

Despite her resignation, the club conducted a domestic inquiry and cleared its honorary secretary and human resources chairman, finding that a reprimand over a work-related matter did not amount to verbal abuse or harassment.

However, the inquiry also found that the club’s F&B executive had made inappropriate remarks bordering on sexual harassment, for which he received a stern warning.

In its decision, the Industrial Court accepted the club’s explanation that the woman’s allegations did not give rise to constructive dismissal.

It also accepted that she was not informed of the inquiry since she was no longer employed with the club at the time.

The court further noted that the woman was offered reinstatement, which she declined, and concluded there was no evidence of an unbearable or hostile work environment that could have forced her resignation. - FMT