Nestle’s dismissal of sexual harasser affirmed by Industrial Court

 

The Industrial Court has upheld Nestle Manufacturing Sdn Bhd’s dismissal of plant operator Farid Jaapar for sexually harassing an intern four years ago. (Facebook pic)

KUALA LUMPUR: A former factory operator with a leading food and beverage company failed to show he was unfairly dismissed following a sexual harassment complaint despite the complainant failing to show up in court to testify.

Industrial Court chairman Syed Noh Said Nazir said evidence taken from the complainant – an intern – during the domestic inquiry conducted by the company was credible and sufficient.

Syed Noh said the evidence contained in her complaint, investigation statement and her testimony during the domestic inquiry outweighed the statements given by the claimant, Farid Jaapar.

He said Nestle Manufacturing Sdn Bhd had made several attempts to procure the complainant’s attendance in court, including via two subpoenas which they were unable to serve on her.

Syed Noh said the company had duly filed an affidavit to prove efforts to serve the documents requiring her attendance in court.

“Therefore, Section 114(g) of the Evidence Act 1950 ought not be invoked against the company as there was no suppression or withholding of evidence,” he said, adding that the company had proved its case against Farid on the balance of probabilities despite the complainant’s absence.

In contrast, the court found that Farid merely offered bare denials when replying to a show-cause letter regarding the incidents of sexual harassment stated in the charge sheet.

Syed Noh ruled that the punishment of dismissal meted out was proportionate to the misconduct in the circumstances of the case.

He said Farid’s conduct was all the more egregious as he had held a position of trust as a plant operator.

The claimant however betrayed the trust placed on him although he was someone superior and senior to her, he said in a 48-page award released last week.

Farid was sacked following a domestic inquiry after being found guilty of sexually harassing the intern by holding her waist and shoulder on more than one occasion between 11am and 2pm on July 24, 2020.

He joined the company on June 1, 2009 and was dismissed on Sept 8, 2020 after the management accepted the findings of the domestic inquiry.

Syed Noh said the court was duty-bound to give effect to the company’s code of business and conduct, especially on sexual harassment.

He said a senior company representative, who testified in the Industrial Court, stated that Nestle would not tolerate any form of harassment.

The court also addressed the issue of whether the use of the words “touched” and “held” in the charge sheet constituted a material contradiction.

Syed Noh ruled that the difference in terminology did not alter the nature of the allegations against the claimant.

Dismissing the claimant’s contention that his actions towards the complainant were accidental and unintentional, the court ruled that his intention was irrelevant.

“The simple fact remains that he had held (the complainant) without her permission,” Syed Noh said in his award.

In any case, he said Farid’s admission that he held the complainant at least twice suggested that it could not have been accidental or unintentional.

Lawyers Rebecca Alfred and Atiqah Munirah Abdul Rahim represented the company, while K Gunaseelan from the Malaysian Trades Union Congress appeared for Farid. - FMT