
Kuala Lumpur Industrial Court chairman Amrik Singh said Composites Technology Research Malaysia Sdn Bhd (CTRM), a supplier of aerospace parts, had given the claimant every opportunity to defend himself, including at a domestic inquiry.
However, his explanation was no more than a bare denial, the court ruled.
“Sexual harassment in any form is intolerable, as it has the potential to subject victims to humiliation, intimidation, loss of self-respect and psychological trauma if the perpetrator is not found to be accountable and appropriately punished,” Amrik said in a 50-page award released last week.
He said it is well established that dismissal is the most common and appropriate sanction for this form of misconduct.
Amrik said the proper legal inquiry was whether the employer had acted reasonably in believing that the employee had committed the misconduct.
“The employer is not required to conclusively prove the misconduct, but to fulfil the burden that there are cogent and rational grounds upon which to reasonably believe the employee had committed the misconduct,” he said.
Amrik said that based on this test and the applicable standard of proof, the company had successfully established that the claimant committed the misconduct.
The claimant, who joined the company in 2001, was sacked in 2022 after a domestic inquiry panel found him guilty of caressing his victim, a worker engaged by the company’s cleaning contractor.
The victim had complained that the claimant had touched her without consent between her waist and armpit and had stroked her hair while she was seated in the pantry.
The entire incident was witnessed by the victim’s colleague, who testified in court.
The claimant, however, denied doing so deliberately, saying his elbow may have accidentally grazed the victim when walking to a sink, as the path in the pantry was narrow.
He also questioned a two-week delay in the victim lodging her complaint to the management. He said he had also lodged a police report to deny the allegations soon after the complainant reported the matter to the management.
Amrit said there was nothing inherently sinister or suspicious about the complainant’s delay in lodging a complaint.
He said the delay cannot by itself vitiate the allegations or affect the victim’s credibility.
“A company witness stated that the complainant was traumatised by the sexual harassment and needed some time and space to recover emotionally from the incident and to determine who the claimant’s employer was.
“Viewed in the context of the superior-subordinate relationship that existed in this instance, the explanation proffered that the victim feared the possible repercussions of offending the claimant who was in senior management was not at all unreasonable or incredible,” he said.
Amrit said a significant part of the claimant’s defence appeared to be made up of afterthoughts and self-serving assertions.
He said he could not accept the claimant’s contention that the contact was accidental.
Amrit said the claimant had conceded during cross-examination that it would be appropriate to offer an apology when accidental physical contact occurs.
“In this case, the claimant failed to extend any such apology. This omission supports the inference that the contact in question was not incidental or accidental but rather, deliberate or intentional,” he added.
Amrit said the court found the complainant’s version of events to be credible and consistent with the testimony of the company’s witnesses.
“The claimant’s own admission that he may have accidentally touched the complainant confirms that there was physical contact. This admission corroborates the finding that the physical contact went beyond an accidental or inadvertent touch,” he said.
N Sivabalah and Reena Enbasegaram represented the company while Muhammad Afiq Mohd Idris and Jalilah Mohd Ali defended the claimant. - FMT
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