Malaysian courts have acknowledged workplace bullying in several Industrial Court decisions –

 

• Bina Goodyear Bhd v Subramaniam[2]: Public humiliation by a supervisor.
• Abbott Laboratories v Yeoh Siew Tin[3]: Toxic remarks from a superior which led to mental distress.
• Darmawatti Dahari v Malaysia Mining Corporation[4]: Victimisation by the Human Resources department.
• Amngran Govindasamy v Lifeline Innovators[5]: Forcibly removing and locking out an employee from the premises;.

 

Introduction of Penal Code (Amendment) (No. 2) Bill 2024

The Penal Code (Amendment) (No. 2) Bill 2024 (“the Bill”) introduces specific provisions to criminalise bullying in all forms, including online abuse. Among the key additions:

 

1. Section 507B criminalises conduct that causes harassment, distress, fear, or alarm.
2. Section 507C covers similar behaviour where the victim is likely to feel harassed, distressed, fearful, or alarmed.
3. Section 507D makes it an offence to act in a way that causes another person to reasonably believe they will suffer harm.
4. Sections 507E and 507F relate to the publication or sharing of identity-related information:
   • 507E applies where such disclosure causes harassment, distress, fear, or alarm; and
   • 507F applies where the disclosure causes the victim to believe that harm will follow.
5. Section 507G defines key terms such as “harm,” “identity information,” and “related person” to ensure clarity and consistency in enforcing these offences.

 

Employer’s Duty to Ensure a Safe Workplace

Occupational Safety and Health Act 1994

Employers have both contractual and statutory duties to protect employees from harmful conduct, including bullying. Employers have an implied duty not to act in a way that destroys mutual trust and confidence and to provide a safe workplace. Under the Occupational Safety and Health Act 1994 (“OSHA 1994”), it is the duty of every employer to ensure, so far as is practicable, the safety, health, and welfare of all employees.[6] This includes psychological well-being.

 

The Department of Occupational Safety and Health (“DOSH”) Malaysia released the Guidelines on Psychosocial Risk Assessment and Management at the Workplace 2024 to provide employers with guidance on screening and assessing psychosocial risks as well as on actions to control and minimise these risks in the workplace.[7]

 

Taking Disciplinary Action Against Perpetrators

Employers are also expected to take disciplinary action against perpetrators when bullying is proven –

• Nik Hishamuddin Nik Mansor v Petroliam Nasional Berhad[8]: The Industrial Court upheld a dismissal for persistent verbal abuse of a female colleague, including derogatory comments and name-calling.
• Afnizahanim Mohammad Saad v Kemaman Bitumen Company Sdn Bhd[9]: Dismissal was upheld for spreading malicious rumours and lying to the CEO.

Bullying occurring outside the workplace may also warrant disciplinary action –

• Lee Ted Yong v Syarikat Sesco Bhd[10]: The Industrial Court upheld dismissal for abusive conduct during a company-sponsored dinner.
• [JBA/RKT: Company name?] Prabakharan Balakrishnan[11]: Dismissal was upheld for cyberstalking a subordinate and misusing her deceased mother’s image. The Industrial Court held that such behaviour, though online and outside working hours, constituted workplace harassment.

 

Where bullying cannot be definitively proven, employers must still take reasonable steps to protect alleged victims without unfairly penalising the accused. Solutions may include mutual separation, transfers, flexible work arrangements, or unpaid leave, provided such decisions meet legal standards of good faith, are not punitive, and do not result in financial detriment.

 

Flexible Work Arrangements as a Mitigation Tool

Flexible work arrangements are now increasingly accessible, with guidelines covering types of arrangements, eligibility, duration, and employer obligations, such as performance evaluation systems and workplace safety considerations.

 

Risks of Inaction

Constructive Dismissal and Negligence Claims

Employers risk liability for constructive dismissal or negligence if they fail to act on complaints. Inaction may amount to a breach of contract or duty of care if the employer knew or should have known about the misconduct.

In Melewar Corporation Bhd v Abu Osman[12], the employer’s inaction in response to sexual harassment was deemed a repudiation of the employment contract.

 

Vicarious Liability

Employers may be held vicariously liable for the misconduct of their employees.

• Maslinda bt Ishak v Mohd Tahir bin Osman & Ors[13]: Various government agencies were held jointly liable for actions committed by a RELA officer in the course of employment.
• Dee v Commissioner of Police, NSW Police (No 2)[14]: The employer’s failure to prevent repeated instances of unwanted physical contact by a colleague led to a finding of vicarious liability.
• Waters v Commissioner of Police of the Metropolis[15], the House of Lords held that an employer can be liable for failing to prevent harassment that causes psychiatric injury, provided it knew or ought to have known about the harassment.

 

Conclusion

The Penal Code (Amendment) (No. 2) Bill 2024 marks a significant step forward in Malaysia’s legal response to bullying, particularly in addressing emerging issues like cyberbullying. It complements the evolving duties of employers under common law and workplace safety legislation.

 

To build a safer and healthier workplace, employers should:

1. a) Implement a Clear Anti-Bullying Policy: Define bullying with specific examples, outline reporting mechanisms, and stipulate disciplinary consequences. The policy should apply to all staff and cover both on- and off-site conduct.
2. b) Conduct Training and Awareness Programmes: Equip employees and management with the skills to identify, prevent, and respond to bullying.
3. c) Establish Confidential Reporting Channels: Provide secure and anonymous ways for employees to report incidents, such as hotlines or direct HR contacts.
4. d) Ensure Fair and Prompt Investigation: Appoint neutral investigators and maintain consistency and fairness in disciplinary procedures.
5. e) Support Victims: Offer counselling services and follow-up support to protect victims’ well-being.
6. f) Foster a Respectful Workplace Culture: Promote inclusivity, mutual respect, and open communication, while recognising positive behaviours.

 

By taking proactive and comprehensive steps, employers can not only reduce the risk of workplace bullying but also foster a healthier, more productive work environment.

If you have any queries, please contact Partner Amardeep Singh Toor (ast@lh-ag.com) or Associate Jihan Binti Azman (jba@lh-ag.com).

 

 

[1] RKT/JBA: insert footnote/ source

[2] RKT/JBA: Citation?

[3] RKT/JBA: Citation?

[4] RKT/JBA: Citation?

[5] RKT/JBA: Citation?

[6] Section 15, OSHA 1994

[7] https://intranet.dosh.gov.my/index.php/ms/competent-person-form/occupational-health/regulation-2-1/guidelines/occupational-health-1/4850-guidelines-on-psychosocial-risk-assessment-and-management-at-the-workplace-2024?format=html

[8] [2024] 4 ILR 35

[9] [2019] 4 ILR 503

[10] [2017] 1 ILJ 4

[11] [2019] 2 ILR 325

[12] [1994] 2 ILR 807

[13] [2009] 6 CLJ 653

[14] [2004] NSWADT 168

[15] [2000] UKHL 50