Amendments to the Employment Act 1955
On 30 March 2021, the Employment (Amendment) Bill 2021 was passed by the Dewan Rakyat which included much-welcomed amendments to the Employment Act 1955 which will better serve to improve the welfare of the labour force in the country. The Employment (Amendment) Act 2022 was initially planned to be implemented on 1 September 2022. However, in late August 2022, it was announced that the implementation of these amendments will be deferred to 1 January 2023.
Some of the key amendments to the Employment Act 1955, amongst others, include:
- Section 37 - Increased maternity leave from 60 days to 98 days;
- Section 60A - Reduced the weekly working hours from a maximum of 48 hours to 45 hours;
- Section 101C - Presumption of employment in the absence of a written contract for employees categorised under the First Schedule
Further, the First Schedule has been revised and the Employment Act 1955 is now applicable to all employees irrespective of wages, with the exception that certain provisions do not apply to employees earning more than RM4,000 per month.
“Harassment” in the Workplace
In the Industrial Court case of Kuldeep Singh a/l Udham Singh v Tobacco Importers and Manufacturers Sdn Bhd (Award No. 2269 of 2022), the Court had the opportunity to look into a claim of unfair dismissal involving an alleged misconduct of sexual harassment by the Claimant.
The Court set out to decide what amounts to harassment. The Industrial Court cited the Federal Court case of Mohd Ridzwan Abdul Razak v Asmah Hj Mohd Nor [2016] 6 CLJ 346 which in turn adopted another Singapore's case in defining the tort of harassment to mean:
“... a course of conduct by a person, whether by words or action, directly or through third parties, sufficiently repetitive in nature as would cause, and which he ought reasonably to know would cause, worry, emotional distress or annoyance to another person.”
Further, the Court considered various views on sexual harassment in the workplace, amongst others:
- Dismissal From Employment and the Remedies (2nd Edition) by Ashgar Ali Ali Mohamed, page 252:
“...Even a single incident of unacceptable behaviour is sufficient to constitute a detriment. Sexual harassment refers to sexual conduct which is imposed, and unsolicited or unreciprocated by the recipient, for example, repeated unwelcome sexual comments, looks or physical contact, among others".
- Law Relation to Sexual Harassment at Work (Second Edition) by Alok Bhasin, pages 58 to 59:
“To “harass” connotes the worrying or troubling of someone by repeated unwelcome behaviour. The essential element behind the verb, to harass seems to be the repetition of the troubling behaviour.
…
An important issue relevant to the definition of sexual harassment is, whether objectionable conduct must be repeated to be properly considered as sexual harassment, or whether a single, sufficiently serious act is sufficient … In the context of “sexual harassment” there is unanimity of judicial opinion that the behaviour complained of need not be repeated to constitute sexual harassment and in a given case even a single act may be sufficient.”
However, the Court granted the Claimant's claim and held that he was unfairly dismissed for the following reasons:
- The alleged sexual harassment happened outside of the company's workplace or work-related incident and there is nothing in its Standard of Business Conduct that covers such an incident; and
- The Company had used sexual harassment as its basis for dismissing the Claimant from his employment but later pleaded in Court that it was not sexual harassment but merely harassment.
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