Mohd Ridzwan v Asmah [2016] 4 MLJ 282: Sexual Harassment Recognised as a Civil Tort

Case at a glance

• Case name: Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor

• Citation: [2016] 4 MLJ 282

• Court: Federal Court of Malaysia

• Year: 2016

• Practice area: Employment Law

Background and facts

The respondent, a female employee, brought a civil action against the appellant, her superior at work, alleging sexual harassment. The High Court and Court of Appeal had ruled in her favour. The matter went to the Federal Court on whether Malaysian law recognised a freestanding tort of sexual harassment.

The issue before the court

Whether sexual harassment is recognised as a tort under Malaysian law, and what elements a plaintiff must establish to succeed in a civil claim for damages.

Holding and reasoning

The Federal Court held that sexual harassment is a recognised tort under Malaysian law. The court drew on principles of intentional infliction of emotional distress and developed a Malaysian framework for the tort. The court awarded damages to the respondent for the harassment she had suffered.

Key elements identified included unwelcome conduct of a sexual nature, conduct directed at the plaintiff, and harm or detriment caused to the plaintiff. The court emphasised that workplace harassment by a superior is particularly serious given the power imbalance.

Why this case still matters

Mohd Ridzwan opened three legal avenues for victims, all of which now coexist:

• Civil suit for damages under the Mohd Ridzwan tort — for general, aggravated, and exemplary damages.

• Sexual-Harassment Tribunal under the Anti-Sexual Harassment Act 2022 — a faster, lower-cost route established after Mohd Ridzwan.

• Criminal complaint under sections 354 (outrage of modesty) and 509 (insulting modesty) of the Penal Code — most serious cases.

• Industrial Court claim for unfair dismissal under section 20 of the Industrial Relations Act 1967, where the harassment forced the employee to resign or led to wrongful dismissal of a complainant.

For employer clients, the case underlines the importance of having an active anti-harassment policy and a complaints procedure that meets the standards of the 2022 Act.

Frequently asked questions

Does Mohd Ridzwan apply now that we have the Anti-Sexual Harassment Act 2022?

Yes. The 2022 Act adds a Tribunal route but does not replace the civil tort recognised in Mohd Ridzwan. Victims can choose the path that best suits their case — civil suit (damages), Tribunal (faster), or criminal complaint.

Is the employer liable for harassment by a manager?

Potentially yes — under principles of vicarious liability where the harassment occurred in the course of employment, and under negligence where the employer failed to prevent reasonably foreseeable harassment.

What damages are typical?

Highly fact-specific. The Federal Court in Mohd Ridzwan upheld substantial general and aggravated damages. Awards depend on severity, duration, power imbalance, and the response by the employer.

Frequently asked questions

Does Mohd Ridzwan apply now that we have the Anti-Sexual Harassment Act 2022?

Yes. The 2022 Act adds a Tribunal route but does not replace the civil tort recognised in Mohd Ridzwan. Victims can choose the path that best suits their case — civil suit (damages), Tribunal (faster), or criminal complaint.

Is the employer liable for harassment by a manager?

Potentially yes — under principles of vicarious liability where the harassment occurred in the course of employment, and under negligence where the employer failed to prevent reasonably foreseeable harassment.

What damages are typical?

Highly fact-specific. The Federal Court in Mohd Ridzwan upheld substantial general and aggravated damages. Awards depend on severity, duration, power imbalance, and the response by the employer.