Sexual Harassment at Workplace Sexual Harassment at Workplace

 

Cases on Sexual Harassment are cases of misconduct. An employee found guilty for sexual harassment or any type of sexual misconduct is guilty of an act that is considered serious misconduct and the relevant cases would be that of misconduct as stated below.

Case1: JENNICO ASSOCIATES SDN BHD v. LILIAN THERERA DE COSTA & ANOR [1998] 3 CLJ 583

"(1)  Following the recent Federal Court decision in R Rama Chandran, the decision of the second respondent had to be examined with scrutiny as the decision was based on an allegation of sexual harassment which could cause enormous embarrassment and damage to Zulkifli's social status.
 
(2)  An allegation of sexual harassment must be adequately corroborated. To rely on the uncorroborated evidence of a complainant alone will be very dangerous.
 
(3)  The evidence of a complainant in a sexual case is quite similar to that of an accomplice. Thus, the principle that the court must warn itself of the dangers of securing a conviction without corroboration should also apply in relation to the two sexual allegations made by Lilian. This, the second respondent did not do as was evident from its written grounds of judgment. The court could not use evidence adduced by the other side to corroborate the claimant's allegations.
 
(4)  In industrial matters, the standard of proof is on a balance of probabilities but the burden of proof remains on the sexual complainant.
 
(5)  The first incident had not been corroborated by Lilian. The fact that she had not informed her husband was an unusual act. Her testimony that she informed Jacqueline Toh the next day was untrue as Jacqueline Toh testified that she was only informed of it in late February 1994. Also, Jennico's witness also testified that Lilian was in a jovial mood at around 3pm on the day of the alleged first incident.
 
(6)  On the second alleged incident, it was found that Lilian did not lodge a police report nor did she inform her husband about it immediately after it had occured. Her reason for refusing to do the latter was unacceptable. Such acts gave rise to a lot of suspicion.
 
(7)  Jacqueline Toh and Jerome Chai were informed about the incident after a long period of time. This meant that their testimonies were not made "at or about the time" of the incident; such self-corroborating evidence should not be allowed as it had lost its probative value.
 
(8)  The evidence adduced created great doubts in the evidence of the claimant and certainly required corroborative evidence. It was inconceivable for the second respondent to arrive at such a finding. There was inconclusive evidence to prove that Lilian had been sexually harassed merely on her uncorroborated evidence which in itself was riddled with contradictions.
 
(9)  Lilian had also lied as to her whereabouts at night on the day of the alleged second incident. Instead of being at home as claimed, she was found to be having fun at the Ming Court Hotel. Such being the nature of Lilian's evidence, it would have been proper for the second respondent to have her evidence corroborated as she had proved to be an unreliable witness.
 
(10) Lilian and her husband had attempted to bribe Simon. This act would have certainly destroyed her credibility and that of all other witnesses involved.
 
(11)  Lilian only stayed with the company for three months. In all probabilities, she had resigned because she could not cope with the pressure as she did not possess the necessary initiative, imagination and experience to carry out the duties and responsibilities as a director of operations.
 

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28 May 2019