Sexual Harassment as Workplace Misconduct in Malaysia

Sexual harassment is not merely inappropriate workplace behaviour. It may amount to serious misconduct under Malaysian employment law and, where properly proved, justify dismissal without notice.

However, an accusation alone is not enough.

The employer must investigate the complaint fairly, give the accused employee an opportunity to respond and decide whether the allegation has been established based on the available evidence.

What Is Workplace Sexual Harassment?

The Employment Act 1955 defines sexual harassment as any unwanted conduct of a sexual nature whether verbal, non-verbal, visual, gestural or physical which:

• is directed at a person;
• is offensive or humiliating, or threatens the person’s well-being; and
• arises out of or in the course of employment.

The focus is not simply on what the alleged harasser intended. The employer should also consider whether the conduct was unwanted and how it would reasonably be understood in its workplace context.

Sexual harassment may be committed by or against a person of any gender.

What Conduct May Amount to Sexual Harassment?

Examples may include:

• unwanted touching or physical contact;
• sexual jokes or remarks;
• comments about a person’s body or appearance;
• repeated requests for dates after being rejected;
• sending sexually suggestive messages, images or videos;
• displaying sexual material at work;
• making sexual gestures;
• asking intrusive questions about a colleague’s sex life;
• spreading sexual rumours;
• promising promotion or benefits in exchange for sexual attention;
• threatening adverse treatment after rejecting a sexual advance; or
• creating an intimidating or humiliating environment through sexual conduct.

Sexual harassment can occur through WhatsApp, email, social media or other digital communications. It does not have to take place inside the office if it arises from the employment relationship, for example, during a business trip, company dinner or work-related online conversation.

Must There Be Physical Contact?

No.

Sexual harassment may be verbal, visual, gestural or communicated electronically. A person does not have to be physically touched before making a complaint.

In Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor [2016] 4 MLJ 282, the Federal Court upheld findings involving repeated vulgar and sexually explicit remarks made by a superior towards his subordinate.

The Court emphasised that sexual harassment is serious misconduct which undermines the victim’s dignity and may harm their mental and emotional well-being. The judgment also recognised the civil tort of sexual harassment under Malaysian law.

Must the Conduct Happen Repeatedly?

Not necessarily.

Repeated conduct can strengthen a complaint by showing a pattern of unwelcome behaviour. However, a single incident may be sufficiently serious, particularly where it involves:

• unwanted physical contact;
• an explicit sexual proposition by a person in authority;
• a threat connected to employment;
• exposure of sexual material;
• coercion; or
• conduct that is seriously humiliating or intimidating.

The employer should assess the nature and seriousness of the conduct rather than assuming that harassment must happen several times before action can be taken.

Does the Harasser’s Intention Matter?

Intention may be relevant, but it is not decisive.

An employee cannot necessarily avoid responsibility by saying:

• “It was only a joke”;
• “I did not mean anything by it”;
• “That is how I speak to everyone”; or
• “The complainant did not object immediately.”

The central questions include whether the conduct was sexual in nature, whether it was unwanted and whether it was offensive, humiliating or threatening in its context.

At the same time, not every friendly interaction, compliment or consensual relationship amounts to sexual harassment. The surrounding circumstances, relationship between the parties and evidence of whether the conduct was welcomed must be considered.

Can Sexual Harassment Justify Dismissal Without Notice?

Yes.

Section 81C of the Employment Act provides that where an employer investigates a complaint and is satisfied that sexual harassment has been proved, disciplinary action may include:

• dismissal without notice;
• downgrading; or
• another lesser punishment considered just and fit.

Where suspension without wages is imposed as a lesser punishment, it must not exceed two weeks.

Sexual harassment is capable of destroying the trust and confidence necessary in an employment relationship. Summary dismissal may therefore be justified, particularly where:

• the conduct was deliberate and serious;
• physical contact or sexual coercion was involved;
• the harasser abused a position of authority;
• the conduct was repeated;
• the victim had previously asked the employee to stop;
• the conduct caused significant humiliation or distress;
• the employee retaliated against the complainant; or
• the employee had previously been warned for similar behaviour.

Nevertheless, dismissal is not automatic in every case. The punishment must remain proportionate to the misconduct proved.

Must the Employer Investigate a Complaint?

Yes.

Section 81B of the Employment Act requires an employer who receives a sexual harassment complaint to inquire into it.

An employer may refuse to conduct an inquiry only where:

• the complaint has previously been investigated and sexual harassment was not proved; or
• the employer considers the complaint frivolous, vexatious or not made in good faith.

The refusal and reasons must be given to the complainant in writing within 30 days. A dissatisfied complainant may refer the refusal to the Director General of Labour.

An employer who fails to investigate as required may commit an offence punishable by a fine of up to RM50,000. The relevant provisions appear in the Employment Act 1955.

How Should the Employer Investigate?

A fair investigation should ordinarily include:

1. Recording the complaint in sufficient detail.
2. Identifying the dates, places, conduct and persons involved.
3. Preserving relevant messages, emails, CCTV footage and other evidence.
4. Informing the accused employee of the allegations.
5. Giving the accused employee a reasonable opportunity to respond.
6. Interviewing relevant witnesses separately.
7. Assessing the evidence objectively.
8. Recording the findings and reasons.
9. Deciding whether disciplinary proceedings are required.
10. Communicating the outcome appropriately.

Where the allegations are serious or materially disputed, a formal domestic inquiry may be appropriate.

The investigator or inquiry panel should be impartial. A person who is the alleged harasser, closely connected to the complaint or already involved in the dispute should not decide the case.

Must There Be an Independent Witness?

No.

Sexual harassment frequently occurs in private. The absence of an eyewitness does not mean that the complaint must fail.

In Mohd Ridzwan, the Federal Court confirmed that there is no strict rule requiring independent corroboration in a civil sexual harassment claim. The evidence must instead be carefully evaluated on the balance of probabilities.

An employer may consider:

• the detail and consistency of the complaint;
• contemporaneous messages or records;
• whether the complainant told anyone shortly afterwards;
• changes in the complainant’s conduct;
• medical evidence, where relevant;
• the accused employee’s response;
• surrounding communications;
• similar complaints, where lawfully and fairly considered; and
• whether the evidence contains material contradictions.

The employer should neither automatically believe nor automatically disbelieve either party.

What If the Complaint Was Made Late?

Delay does not automatically make a complaint false.

A complainant may hesitate because of:

• fear of retaliation;
• embarrassment;
• concern about career consequences;
• the seniority of the alleged harasser;
• uncertainty about the reporting process; or
• hope that the conduct will stop.

The employer may ask why the complaint was delayed, but should assess the explanation fairly together with the remaining evidence.

Should the Accused Employee Be Suspended?

The employer may consider temporarily removing the accused employee from the workplace where necessary to protect the investigation or the parties involved.

Possible interim measures include:

• paid suspension;
• temporary changes to reporting lines;
• remote working arrangements;
• restricting contact between the parties; or
• temporarily transferring one party without loss of status or benefits.

These measures should not be treated as a finding of guilt. The employer should also avoid unfairly burdening or isolating the complainant merely because they raised the complaint.

Any disciplinary suspension must comply with section 14 of the Employment Act and the employee’s contractual terms.

Can the Employer Reveal the Complainant’s Identity?

The employer should maintain confidentiality as far as reasonably possible, but cannot usually promise complete anonymity.

An accused employee must receive sufficient details of the allegation to provide a meaningful response. In many cases, this will make the complainant’s identity apparent.

Information should be shared only with persons who genuinely need it for the investigation, disciplinary process or protection of those involved. Workplace gossip and unnecessary disclosure should be actively discouraged.

What About Retaliation Against the Complainant?

Retaliation may amount to separate misconduct.

Examples include:

• threatening the complainant;
• pressuring them to withdraw the complaint;
• reducing their duties without justification;
• giving unjustified poor appraisals;
• excluding them from work activities;
• spreading rumours;
• intimidating witnesses; or
• dismissing the complainant because they reported the conduct.

Employers should monitor the workplace after a complaint and make it clear that retaliation against the complainant or witnesses will not be tolerated.

What If the Complaint Is Not Proved?

A finding that sexual harassment was not proved does not necessarily mean that the complaint was dishonest.

Evidence may simply be insufficient to reach a conclusion.

Disciplinary action against a complainant should only be considered where there is reliable evidence that the complaint was deliberately fabricated or made in bad faith. Employers should not punish an employee merely because their complaint could not be established.

Otherwise, employees may become afraid to report genuine misconduct.

Does the Employer Need a Sexual Harassment Policy?

A clear policy is strongly advisable.

The policy should explain:

• what amounts to sexual harassment;
• how complaints can be made;
• alternative reporting channels where the complaint involves a manager;
• how investigations will be conducted;
• confidentiality expectations;
• possible disciplinary consequences;
• protection against retaliation; and
• where employees can obtain support.

Section 81H of the Employment Act also requires employers to display conspicuously at the workplace a notice raising awareness of sexual harassment.

Policies should be supported by practical training, particularly for managers and employees responsible for receiving complaints.

Can the Victim Take Action Outside the Workplace Process?

Potentially.

Depending on the circumstances, the complainant may also consider:

• lodging a complaint with the Director General of Labour;
• making a police report where the conduct may constitute a criminal offence;
• commencing a civil claim;
• filing a complaint before the Tribunal for Anti-Sexual Harassment; or
• pursuing an employment claim if the employer’s response results in dismissal or constructive dismissal.

The Anti-Sexual Harassment Act 2022 establishes a separate legal framework and Tribunal for Anti-Sexual Harassment. The Act and Tribunal regulations are available from the Ministry of Women, Family and Community Development.

These avenues serve different purposes. An internal disciplinary inquiry determines workplace misconduct, while criminal, civil and Tribunal proceedings involve separate legal processes and remedies.

Practical Checklist for Employers

When receiving a sexual harassment complaint, employers should ask:

• Is the complaint sufficiently detailed?
• Have relevant documents and electronic records been preserved?
• Is the investigator impartial?
• Has the accused employee received a fair opportunity to respond?
• Are temporary protective measures necessary?
• Have all relevant witnesses been interviewed?
• Do the findings follow from the evidence?
• Is the proposed punishment proportionate?
• Has confidentiality been maintained where possible?
• Is the complainant protected against retaliation?
• Has the outcome been properly documented?

A rushed investigation may harm both the complainant and the accused employee. Ignoring the complaint creates even greater legal and workplace risks.

Final Thoughts

Sexual harassment may constitute serious workplace misconduct and justify dismissal without notice under Malaysian employment law.

However, employers should not reach conclusions based solely on an accusation, workplace rumours or personal assumptions. The complaint must be investigated fairly, the accused employee must be allowed to respond and the final decision must be supported by evidence.

A proper process protects the complainant, preserves procedural fairness and enables the employer to take firm disciplinary action where sexual harassment is proved.

If you need help investigating a sexual harassment complaint, responding to an allegation or conducting a disciplinary process under Malaysian employment law, feel free to get in touch. You can also explore Employment Law Malaysia: The Complete Guide for Employees and Employers (2026) for practical articles covering workplace misconduct, disciplinary procedures and dismissal.

This article provides general information and does not constitute legal advice. Each complaint should be assessed according to its facts, evidence and applicable workplace procedures.