A recent Industrial Court award highlights an urgent gap in Malaysian law
By: Dr. Tahirah Manesah Binti Abu Bakar, Employment Law & Industrial Relations Consultant
The Institutional Gap
When a Malaysian employee suffers sexual harassment in the workplace, the law now offers two distinct forums for redress. The first is the Anti-Sexual Harassment Tribunal (Tribunal Anti-Gangguan Seksual, or TAGS), established under the Anti-Sexual Harassment Act 2022 (Act 851). The second is the Industrial Court, where the employer or the dismissed employee may seek to vindicate or contest the employment decision to which the harassment gave rise. In principle, these jurisdictions are complementary. In practice, they are legally uncoordinated, and the question of what happens when they produce inconsistent findings has not been addressed.
The Industrial Court hears dismissal claims under the Industrial Relations Act 1967. Its function is to determine whether a dismissal was with or without just cause and excuse. The TAGS hears harassment complaints and may award compensation to the harassed person. Both forums may be required to determine, on the same facts, whether the same conduct constituted sexual harassment. Neither is bound by the other’s finding.
This article examines the institutional gap through the lens of Wong Qi Sheng v Eurofins GSC IT Malaysia Sdn Bhd, Award No 660 of 2026, a recent Industrial Court decision from Penang in which the dismissal of an employee for sexual harassment and insubordination was upheld.
The Statutory Framework: What TAGS Can and Cannot Do
The Anti-Sexual Harassment Act 2022 creates a freestanding civil complaint mechanism for victims of sexual harassment. The Act’s definition of sexual harassment is broadly framed, encompassing unwanted conduct of a sexual nature that is offensive, humiliating, or threatening to the complainant’s wellbeing. The definition is not limited to the employment context, but workplace harassment is its most prominent application.
A complaint is lodged with the Tribunal’s Secretary within the prescribed limitation period. The Tribunal has wide investigative powers, including the ability to call for documents and summon witnesses on its own motion. It may award compensation up to RM250,000 for loss, damage, or injury caused by the sexual harassment. Notably, the Act does not provide for injunctive relief, reinstatement, or any remedy addressed to the employment relationship itself. The TAGS is a compensation forum for the victim. It is not an employment tribunal.
The Employment Act 1955, as amended, imposes on employers a duty to inquire into sexual harassment complaints. This duty exists independently of both the TAGS jurisdiction and the Industrial Court’s jurisdiction. The employer’s inquiry findings are not required to be disclosed to TAGS, and TAGS is not required to take cognisance of them. The result is a legal landscape in which three separate processes i.e. the employer’s internal inquiry, the TAGS complaint, and the Industrial Court proceeding may each examine the same conduct without binding reference to one another.
This fragmentation reflects the legislature’s decision to create a dedicated harassment tribunal without integrating it into the existing employment law architecture.
Eurofins as Illustration
The Facts and the Parallel Complaint
In Eurofins, the claimant was an IT Engineer employed by Eurofins GSC IT Malaysia Sdn Bhd since April 2020 with a prior history of disciplinary proceedings, including a previous dismissal and reinstatement. On 15 November 2022, during a meeting convened to address his persistent failure to follow the company’s Pending Auto-Close protocol, the claimant made a remark to his female Team Lead: “It is not my fault that you get Covid by making out”. The Team Lead formally complained of sexual harassment one week later.
The complaint was lodged with the Labour Office (Pejabat Tenaga Kerja) on 22 November 2022. This is significant. The Labour Office referral mechanism under the Employment Act 1955 would ordinarily trigger the employer’s inquiry obligation; it may also, depending on the circumstances and the complainant’s election, give rise to a complaint to TAGS. The Industrial Court award records the Labour Office complaint but does not indicate whether a TAGS complaint was made, whether the Tribunal was convened, or if any finding was made.
That silence is the institutional gap in microcosm. The Industrial Court determined the dismissal claim on the merits, upholding the dismissal as proportionate, without reference to any TAGS proceeding. Whether the same conduct was separately examined by TAGS, and whether TAGS reached the same conclusion, is unknown from the published record. The law does not require the Industrial Court to know, and does not require TAGS to tell it.
The Industrial Court’s Analysis
The Industrial Court’s substantive reasoning in Eurofins is sound in its own right. On the sexual harassment charge, the Court found the claimant’s evidence ‘evasive, ambivalent, and indecisive’, applying the principle established in Chanrakandan Munusamy that once a witness’s credibility is compromised on peripheral matters, the Court is unlikely to believe their evidence on the central issues. The claimant had failed to deny the allegation in his written reply to the show cause letter and had amended his witness statement at the eleventh hour without providing a coherent account of the disputed phrase. The Court took judicial notice of the Cambridge Dictionary definition of ‘making out’ and found the remark unmistakably sexual and offensive to the Team Lead’s dignity.
The Jurisdictional Relationship Problem
The Risk of Conflicting Findings
The deepest problem created by the current legislative architecture is the risk of irreconcilable findings. The Industrial Court may uphold a dismissal on the ground that sexual harassment occurred, applying the just cause and excuse standard under Goon Kwee Phoy v J&P Coats. Simultaneously, TAGS may determine by examining the same remark, the same meeting, and the same witnesses that the conduct did not constitute sexual harassment within the meaning of the Act. Both findings are legally valid. Neither binds the other. The employer who has dismissed for sexual harassment is in the anomalous position of having its decision vindicated by the Industrial Court and contradicted by TAGS on the same facts.
Conversely, TAGS may find sexual harassment proved and award compensation to the complainant. The Industrial Court may simultaneously determine that the employer’s dismissal of the harasser was disproportionate and order reinstatement. The harasser is reinstated to work alongside the person TAGS has found him to have harassed. The legal system has simultaneously vindicated the complainant and returned the perpetrator. Neither outcome is legally defective; together, they are institutionally indefensible.
The Malaysian legal system does not, as a general principle, tolerate inconsistent determinations on the same facts by tribunals of concurrent jurisdiction. In the TAGS and Industrial Court context, however, no mechanism exists to prevent that outcome. There is no consolidation power, no cross-disclosure obligation, no requirement that one forum await the other’s decision, and no appellate mechanism that could bring the two proceedings into alignment.
The Evidentiary Cross-Pollination Question
A second and more immediate problem is evidentiary. If TAGS determines that sexual harassment occurred and makes a finding of fact to that effect, is that finding admissible in Industrial Court proceedings involving the same conduct? And if the Industrial Court makes a contrary finding, can the harassed employee rely on it in TAGS proceedings? There is no reported Malaysian authority on the cross-admissibility of findings between TAGS and the Industrial Court.
In Eurofins, the Industrial Court did not have before it any TAGS finding. Had TAGS already determined the harassment complaint, the question of whether that determination was admissible, or even disclosable, would have arisen with some urgency. A claimant contesting dismissal for an act that TAGS has already found not to constitute sexual harassment has an obvious interest in placing that finding before the Industrial Court. An employer defending its decision to dismiss has an equal interest in relying on a TAGS finding that the harassment was proved. The law currently provides neither entitlement.
The Complainant’s Position
The institutional gap falls most heavily on the harassed person. That person must navigate two separate forums with separate limitation periods, separate procedural rules, and separate standards of proof. He/she has no procedural right to be heard in the Industrial Court proceeding, even though its outcome directly affects the person against whom the harassment was directed. If the Industrial Court reinstates the harasser, he/she has no standing to appeal. His/Her only recourse is TAGS, whose compensation award, however appropriate, does not prevent the reinstatement.
The tort of sexual harassment recognised in Mohd Ridzwan Abdul Razak v Asmah Hj. Mohd Nor provides a parallel civil law remedy for the victim but adds a third forum to the two already in play and does nothing to resolve the coordination problem.
Towards a Framework for Coordination
The institutional gap identified in this article is not constitutionally intractable. It can be addressed through a combination of legislative amendment and judicial practice direction. Three minimum measures are required.
The first is a cross-disclosure obligation. Where a TAGS complaint and an Industrial Court proceeding are pending on the same facts, each tribunal should be required, on application or on its own motion, to disclose to the other the fact of the parallel proceeding and the nature of the issues before it. This does not require disclosure of confidential evidence or privileged material. It requires honesty about the institutional landscape.
The second is a sequencing rule. Where both proceedings are pending, the tribunal first seized should ordinarily proceed to determination; the second should defer the relevant factual findings until the first has published its award. This prevents the waste of parallel proceedings producing contradictory findings and ensures that the first determination is at least visible to the second forum before it reaches its own conclusion. The sequencing rule does not require one tribunal to be bound by the other; it requires each to know what the other has found.
The third is an admissibility provision. Findings of fact made by TAGS, specifically, whether conduct of a particular character and in particular circumstances constituted sexual harassment within the meaning of the Act, should be admissible as evidence in Industrial Court proceedings involving the same conduct. The Industrial Court retains its own standard of proof and its own fact-finding function, but it is not required to proceed in ignorance of what another specialist tribunal found on the same question.
These three measures: disclosure, sequencing, and admissibility, fall short of full jurisdictional integration. They do not require a single forum or a single proceeding. They require only that the two forums be aware of each other and that the evidentiary product of each be available to the other.
Conclusion
The Eurofins award is, on its own terms, a careful and principled application of established doctrine. Witness credibility was rigorously assessed. Proportionality was properly applied. The outcome is defensible on the facts, but the award illustrates, in its silence on the TAGS dimension, the central unresolved question of Malaysian sexual harassment law in the post-2022 landscape: what is the legal relationship between the two forums the legislature has created, and what happens when they disagree?
The Anti-Sexual Harassment Act 2022 was enacted to give victims of sexual harassment a dedicated forum with specialist jurisdiction and meaningful compensation remedies. It was not enacted to create a second forum that operates in legal isolation from the Industrial Court while hearing the same facts. That isolation is a product of legislative omission, not legislative design, and it should be corrected.
Until it is, practitioners advising both complainants and employers must recognise that a sexual harassment incident in the workplace now potentially generates proceedings in three separate forums i.e. the employer’s internal inquiry, TAGS, and the Industrial Court, each of which may reach independent findings on whether the same conduct constituted sexual harassment, and none of which is required to yield to the others. The harassed person, who has the least institutional power in that configuration, bears the greatest burden of its incoherence.
