What Constitutes Harassment?

Types of workplace misconduct and what we should do

Mention the word harassment and the first thing that hits our mind is the cynically construed idea of sexual harassment. While most will agree that sexual harassment at the workplace is a serious offence, most of us limit its concept to physical contact, words, and suggestive behaviours that make us terribly uncomfortable.

Many among us would dismiss the fact that sexual jokes, forwarding of adult messages or pictures, making lewd signs or physical contact among our peers, are also considered sexual harassment. Only reason being—they are our friends and they don’t mean harm.

What most of us do not realise is the fact that there are various forms of harassments that we should start taking note of. Unfortunately, as far as Malaysian laws are concerned, the authorities only pay attention to sexual misconduct under the Employment Act.

Other forms of aggressions have lesser attention in the eyes of the local legal system, but there are several existing laws that can be leveraged upon if the cases are serious.

Some scenarios are easy enough to be handled on your own. For example, if your colleague is always standing too close to you or are all touchy-feely, you can move away or make it very clear to them that you need your personal space through your body language.

Sometimes, confronting a co-worker if he or she is being a nuisance just once, will put an end to their antics. But if the matter persists, always seek your supervisor’s advice first. If that doesn’t help, approach your management. When those two don’t work, then move out to seek professional or legal help. This is because, most of the time harassment issues are isolated and can be resolved within the organisation.
Let’s take a look at the different forms of workplace nuisance that fall under the category of harassment.

#1 Sexual harassment

This is undoubtedly the most common form of harassment discussed. Sexual harassment can be anything demeaning, offensive, suggestive or lewd to the opposite gender. Most cases in Malaysia involve female victims, but male victims are not unheard of.

Sexual harassment can take the form of verbal, non-verbal, psychological and physical. It can vary from jokes and jesting, to inappropriate touching or sharing of images on the surface level. Action can be taken against organisations that fail to act on complaints of sexual harassment from employees.

According to section 81F of the Employment Act 1955, an employer who fails to inquire into complaints of sexual harassment; inform the complainant of the refusal and reasons behind it; or, submit a report of the inquiry, can be fined up to RM10,000.

#2 Threats, disruptive behaviours, or misconduct

E-mails and phone calls that can be considered a threat, disturbing behaviour that disrupts the working process, and unnecessary pressuring of workers or co-workers that are serious to cause extreme physical, mental or emotional discomfort, can be considered as a form of harassment.
Keep a clear note of the five Ws and one H (who, what, when, where, why and how) because the last thing you want your management to do is to view your case as a non-threat.

#3 Bullying

This term refers to acts of calling names, spreading rumours, damaging of personal properties, harmful or violent physical contact like fights, slapping and punching or non-sexual physical or verbal abuse.

Cyberbullying among colleagues, serious temper tantrums and unfair treatment by the supervisor, abuse of authority, open humiliation, and coercion to perform a task, can fall under the category of bullying.

In the United States, UK, Canada and other countries, action can be taken against co-workers or employers who resort to such acts.
Unfortunately, there is no legislation governing this portion of workplace harassment in Malaysia, but there are possibilities of victims taking action under the Defamation Act 1957.

They can also file a report for constructive dismissal and compensation with the Industrial Court if there are relevant and sufficient proof to convict the harasser.

#4 Discriminative harassment


Exhibition of hostile behaviours centred on one’s beliefs, religion, skin colour, sexual orientation and disabilities, can also be demotivating and demeaning. Worse, it could result in extreme tension and unhealthy work environment.

Again, countries like the United States and Canada would not hesitate to act against co-workers or employers who discriminate based on these sentiments or social values.

There are no particular laws here in Malaysia to address such issues, but avenues that can be considered under the Penal Code include intimidation if the matter becomes a criminal case. Other labour laws which include unfair discrimination can also be considered.
Gender discrimination does carry some weight and is viewed more seriously as gender equality is a constitutional right. Gone are the days where this scenario only applies to women.

What can employees do?

1. Take action

Be bold and file a complaint or make that meeting with your human resources (HR) personnel happen if you are facing any form of harassment. Don’t underestimate your ability to change things, even if you are alone in your journey.

Follow up with your HR department if the matter is being investigated or if action will be taken. Suppose your HR department fails to provide you a satisfactory answer—after numerous attempts—have the courage to seek legal advice or make a police report if the matter is serious.

2. Speak to someone

The last thing you want to do is remain quiet about such issues like sexual harassment and bullying. By speaking to trustworthy colleagues, you are not only helping to address the matter, but may open up a can of worms which is a good thing in this situation. For all you know, you may have helped other people in the process.

You could also speak to your supervisor (if he or she isn’t directly involved) to rally some support or deliberate on ideas to tackle less threatening issues like emotional blackmailing or disruptive behaviours.

3. Know your rights

Read up. Have basic knowledge on labour, employment and management laws. It will help you determine your next course of action if you or your colleagues are affected. Knowing your rights is always a good thing even if
your workplace is devoid of harassment issues.

4. Don’t publicise the matter on social media

This could backfire on you. Apart from it breaching the code of ethics or your employment contract (when you share internal issues that could possibly compromise your company’s credentials), you are also opening up possibilities of lawsuits if the matter becomes public. No doubt you will garner support from family and friends but professionally, it may do more harm than good.

What can management do?

Harassment issues can be minor but they have a tendency to grow out of proportion if no proper attention is given. It is the job of the HR management to ensure that the workplace is harassment-free. There are ample steps that the management can take to arrest this issue:

1. Have a complaints or suggestions box

Management should take this avenue seriously. Most employees, particularly those who are modest or reserved, will find it extremely difficult to share their situations openly.

Most workers may think that the management will always take the side of other management staff (in harassment scenarios that involve higher management personnel) and would be apprehensive in filing a complaint.

It is therefore important for management and HR divisions to be as welcoming as possible or let the employees know that they can be easily approached for personal discussions.

2. Take action

Yes, it takes time and effort, but it helps maintain a healthy environment when management takes action against complaints of harassment of any form. This also maintains the trust of your employees.

3. Be transparent, but protect complainants’ information 

Harassed victims need to feel protected and they can only rely on management to back them up if they are victimised in any situation.
Management should let employees know that they can seek your advice and that their identities will be protected.

It’s not easy to work in an environment where the “harasser” and the “harassed” meet eye-to-eye all the time. Being transparent about such processes can help ease any form of hostility and maintain workplace harmony.

4. Have guidelines or code of ethics

Every organisation generally has ethics and rules for various employment aspects in place. Remind everyone from time to time about these guidelines and let them know that you do view harassment cases, whether sexual or otherwise, seriously and will not hesitate to take action, amounting to dismissal or other forms of legal address.

5. Have an in-house or external counsellor

This may sound like an additional cost but it may be necessary from time to time. If issues of harassment get out of control, your workers can suffer from psychological and emotional distress.

If these issues are not addressed professionally, it can affect productivity and the employees’ mental health.

In addition, having a counsellor can help address problems especially if the nature of your business is highly stressful.
 
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