Remedies for Victims of Sexual Harassment in Malaysia: Four Avenues of Redress
by Muhammad Faiz bin Hasan
When a person suffers sexual harassment in Malaysia, it is a common misconception that there is only one way to seek justice. In practice, the law offers several distinct avenues, each with its own forum, procedure, and outcome. A victim may pursue a claim for constructive dismissal under industrial relations law, lodge a complaint before the newly established Tribunal for Anti-Sexual Harassment, bring a civil action in the courts founded on the tort of harassment, or make a police report leading to criminal prosecution. Importantly, these avenues are not mutually exclusive, and in many cases a victim may pursue more than one simultaneously. This article explains each of the four routes, the landmark authorities that shape them, the procedure involved, and what may be claimed or achieved under each.
What remedy is available where the harassment occurs at the workplace?
Where sexual harassment takes place in the course of employment and the employer fails to act, leaving the victim with no reasonable option but to resign, the victim may pursue a claim of constructive dismissal under the Industrial Relations Act 1967. The legal foundation of such a claim is that the employer's conduct — including its failure to address the harassment — amounts to a fundamental breach of the contract of employment, so that the resignation is treated in law not as a voluntary departure but as a dismissal forced upon the employee.
The procedure begins with the employee filing a written representation under Section 20 of the Industrial Relations Act 1967 to the Director General of Industrial Relations at the Department of Industrial Relations (Jabatan Perhubungan Perusahaan). This representation must be filed within sixty days of the date of dismissal, a strict statutory time-frame that the courts have consistently enforced. The Director General will then attempt conciliation between the parties, and where conciliation fails, the matter is referred to the Industrial Court for adjudication. At trial, the burden lies on the employee to establish that there was a fundamental breach by the employer going to the root of the contract, that the employee left in consequence of that breach, and that the employee did not delay so long as to be taken to have affirmed the contract.
The case most frequently cited in discussions of constructive dismissal arising from sexual harassment is Jennico Associates Sdn Bhd v Lilian Therera De Costa & Anor [1996] 2 ILR 1765 (Industrial Court, Award No. 606 of 1996); [1998] 3 CLJ 583 (High Court). At the Industrial Court stage, the employee complained of sexual harassment by her managing director, and the Industrial Court, observing that there is an implied essential term in every contract of employment that an employee should be treated with respect and dignity, found in her favour. On the employer's application, however, the High Court subsequently quashed that award, holding that it was for the employee, and not the employer, to prove the case. The decision is therefore significant less as a victory for the claimant than for its judicial discussion of the doctrine — in particular, the recognition that an employer's failure to provide a working environment free of harassment may, in a proper case, support a claim of constructive dismissal. It remains a foundational reference point on the interaction between sexual harassment and the constructive dismissal doctrine in Malaysia.
As to what may be claimed, where the Industrial Court finds that the dismissal was without just cause or excuse, the available remedies are reinstatement to the former position with back wages, or, where reinstatement is impractical, compensation in lieu of reinstatement. In accordance with the Industrial Court's established practice, compensation in lieu of reinstatement is generally assessed at one month's salary for each completed year of service, together with back wages, which are ordinarily capped at twenty-four months for a confirmed employee. The advantage of this avenue is that it delivers an employment-related financial remedy, though it is necessarily confined to situations where an employer-employee relationship exists.
What is the Tribunal for Anti-Sexual Harassment, and how does it work?
The Tribunal for Anti-Sexual Harassment (TAGS) is established under Section 3 of the Anti-Sexual Harassment Act 2022 (Act 840), which came into force in 2022 and through which the Tribunal commenced operations in 2024. It was designed to provide an expeditious, inexpensive, and easy mechanism for redress, serving as an alternative to lengthy and costly civil litigation. Unlike the criminal justice process, its jurisdiction is not confined to the workplace; it extends to harassment in any setting, including online or digital sexual harassment.
The procedure is deliberately simple. A victim files a complaint with the Tribunal, which then adjudicates the matter in a summary fashion at low cost. The Tribunal does not possess investigatory powers in the manner of the police; its function is confined to hearing and determining complaints and granting appropriate remedies. A party dissatisfied with the Tribunal's decision may apply for judicial review at the High Court.
As to remedies, Section 20 of the Anti-Sexual Harassment Act 2022 empowers the Tribunal, where a complaint is proven, to make an award that may include a written apology, the publication of that apology, an order to attend counselling, and compensation or damages of up to RM250,000 for any loss, damage, or injury caused by the sexual harassment.
The significance and enforceability of these awards were recently affirmed in a landmark decision. In June 2026, the Kuala Lumpur High Court upheld an award of the Tribunal for Anti-Sexual Harassment in favour of a woman whose former partner had posted intimate photographs of her online without her consent. The High Court affirmed the Tribunal's ruling, which had ordered the man to issue a written apology, attend counselling, and pay the complainant RM60,000 in damages. The decision is important because it demonstrated that the Tribunal's awards are not merely symbolic but are capable of withstanding judicial scrutiny — a considerable strengthening of the Tribunal's standing as a genuine dispute-resolution mechanism, particularly for victims of online and digital sexual abuse.
Can a victim sue for damages in the civil courts?
Yes. A victim may bring a civil action founded on the tort of harassment, a cause of action which Malaysian law recognised comparatively recently. Before 2016, there was no freestanding tort of sexual harassment in this country.
This position was transformed by the landmark decision of the Federal Court in Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor [2016] 4 MLJ 282. On 2 June 2016, the Federal Court, for the first time, recognised the tort of harassment — encompassing sexual harassment — in Malaysian common law, finding sufficient reason to import the tort especially as it had been pleaded on the facts. The Federal Court upheld the High Court's award to the victim of RM100,000 as general damages and RM20,000 as aggravated and exemplary damages for the proven tort of sexual harassment. In concluding its judgment, the Federal Court emphasised that sexual harassment is a very serious form of misconduct that cannot be tolerated, in whatever form it takes. To establish the tort, a claimant must generally show a course of unwelcome conduct of a sexual nature, carried out with the intention or effect of distressing or alarming the victim, which causes harm or emotional distress.
The procedure follows that of ordinary civil litigation. The victim files a writ and statement of claim in the Sessions Court or the High Court, depending on the quantum claimed, followed by the exchange of pleadings, discovery of documents, and a full trial. This route is typically longer and more costly than the alternatives, but it permits a more substantial claim for damages and is not subject to the RM250,000 ceiling that applies before the Tribunal. A successful claimant may recover general damages, aggravated and exemplary damages, and, where appropriate, an injunction to restrain continuing harassment. This avenue is best suited to a victim who seeks full legal vindication and significant financial redress directly against the perpetrator.
What can a victim achieve by making a police report?
Where the harassment carries a criminal dimension — such as unwanted physical contact, threats, or words and gestures intended to insult a person's modesty — the victim may make a police report so that criminal action may be taken against the perpetrator.
The procedure begins with the lodging of a report at a police station. The police will conduct an investigation, and where there is sufficient evidence, the investigation papers are forwarded to the Deputy Public Prosecutor for a decision on prosecution. The matter is then tried in the criminal courts. Evidence such as messages, witnesses, closed-circuit television footage, and medical reports is of considerable assistance.
Two provisions of the Penal Code (Act 574) are of central importance. Section 354 of the Penal Code provides for the offence of assaulting or using criminal force on a person with intent to outrage modesty — for instance, unwanted physical touching — and is punishable with imprisonment of up to ten years, or with fine, or with whipping, or with any combination of these. Section 509 of the Penal Code addresses words or gestures intended to insult the modesty of a person, such as lewd remarks or obscene gestures, and is punishable with imprisonment of up to five years, or with fine, or with both.
The outcome of this avenue is a criminal sanction against the perpetrator — imprisonment, fine, or whipping — rather than financial compensation to the victim. It serves the distinct purposes of criminal accountability and deterrence, and may be pursued concurrently with a civil claim or a complaint before the Tribunal.
Conclusion
The choice of avenue depends ultimately on the victim's objective. Where harassment compels a victim to leave employment, the constructive dismissal route under Section 20 of the Industrial Relations Act 1967, illuminated by Jennico Associates Sdn Bhd v Lilian Therera De Costa, may deliver an employment-related remedy of reinstatement or compensation. Where the victim seeks a swift, inexpensive resolution carrying an apology and compensation of up to RM250,000, the Tribunal for Anti-Sexual Harassment under the Anti-Sexual Harassment Act 2022 — whose awards have now been judicially affirmed — offers a compelling forum. Where the victim seeks substantial damages and full legal vindication against the perpetrator personally, a civil action in the tort of harassment, founded on Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor, is appropriate, albeit slower and more costly. And where the conduct is criminal in nature, a police report under Sections 354 and 509 of the Penal Code brings the perpetrator to criminal account. In practice, these routes frequently operate side by side, and a victim need not regard the choice as final or exclusive.
