Question1

ii) Assuming that you are the Senior HR Manager in one of the manufacturing company, how the minimum retirement age act in Malaysia has any impact in your company and industry taking into consideration it advantages and disadvantages?

As a Senior HR Manager, I do believe there is impact of the minimum retirement age act in company and industry as well.

Implementation of the new minimum retirement age act could be beneficial to the company. Based on the survey done by the group Aon Hewitt (2011), 53% out of the 107 companies that participated in the survey thinks that they will lose their talented employees. Furthermore, some companies also worry that they could not find the replacement for their talented senior employees due to the lack of talents in the market (Aon Hewitt, 2011). According to Tung and Comeau (2012), company that offer job rotation for the senior workers could save the cost of hiring new employees. Some senior employees are talented, still productive, and have many experiences that the younger employees do not have. Senior employees can share their experiences and knowledge, lead, and guide the newly hired employees. This could also help the company to save the cost of hiring outside trainer to train their new employees.

However, there are drawbacks towards the company for implementing the new Act. Some company would face cost structure disruption due to the Act as mentioned by the Malaysia Employers Federation (Aruna & Rahim, 2012). The senior employees have higher payroll than those younger ones. Some company could not afford higher wages employees and hence would face the financial problem due to the Act. Furthermore, some senior employees might face some health problem as they age and this would increase the company’s cost due to the medical bills (Tung & Comeau, 2012). This would be a burden to the company especially those small-medium enterprises (SMEs).

Besides the company, there are also some impacts of introducing the new retirement age act on industry field. According to Li (n.d.), delaying the retirement age from 55 to 60 can brings an impact on those fresh graduates or young employees. It is because the vacancies that were previously prepared for them which following the retirement of the older employees are delayed. He also stated that the pre-MRAA case of Sistem Penerbangan Malaysia Berhad had successfully argued in the Industrial Court on increasing the retirement age from 55 to 66 could cause frustration and stagnation of junior employees who failed to promote to the senior position as the senior staff only retires at the age of 60. Besides that, he also mentioned that the productivity of older employees may decline with age which lowers the performance of the organization. Some other disadvantages associated with older employees include inflexibility in executing tasks, unwilling to learn new knowledge, difficult in maintaining up-to-date skills, and reluctance to take part in any training programs. Apart from that, Malaysian Employers Federation (MEF) Executive Director, Y. Bhg. Datuk Hj. Shamsuddin bin Bardan also claimed that the unemployment rate could rise from 3.7% to 4% or higher as the industry field is forced to subdue the loss in job openings as employee retires later (FreeMalaysiaToday, 2013). He said that the Malaysian job market is not well-prepared for the entering of new fresh graduates if the present employees do not leave the job market at the age of 55.

In the other hand, new retirement age act can bring some long-term benefits (Chew, 2013). He proposed that by elongate five more productive years, the gross domestic product (GDP) of the national economy could be raised by extra 400 000 workers. He also said the government deficit can be reduced significantly as the workers working longer and contribute to the Employees Providence Fund (EPF) by continuing paying income tax. Last but not least, the contributions and taxes from the private sector can be reduced. This is because with the increase of revenue and surplus from the government, the income tax and other tax incentives from the private sector can be reduce.

In a nutshell, the new retirement age act in Malaysia do give impacts on company and industry as well. Therefore, it is important for us to modify and minimize the negative impact so that it won’t affect company, industry and country much.

Question 2

a) Does Sally have a basis for claiming “hostile environment” sexual harassment? How was she harmed?

In our opinion, we think that Sally does have a basis for claiming “hostile environment” sexual harassment. Based on Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace which established by Ministry of Human Resources, Malaysia in 1999, sexual harassment means

“any unwanted conduct of a sexual nature having the effect of verbal, non-verbal, visual, psychological or physical harassment:

• that might, on reasonable grounds, be perceived by the recipient as placing a condition of a sexual nature on her/his employment; or
• that might, on reasonable grounds, be perceived by the recipient as an offence or humiliation, or a threat to his/her well-being, but has no direct link to her/his employment.

Based on The Code, sexual harassment of Sally case is fall on sexual annoyance, a sexually-related conduct that is offensive, hostile or intimidating to the recipient, but nonetheless has no direct link to any job benefit. In Sally case, the sexual harassment was fall into category of harassment by an employee against another employee. From the text above, the co-worker of Sally were whistles, leers, comments about her sexy physical body, one of the crew members whom name Al, even grabbed Sally and tried to kiss her. Sally was refuge what Al did on her. The action did by Al and co-worker were an unwanted conduct of a sexual nature having the effect of physical, verbal, non-verbal and visual which can be counted as a hostile environment sexual harassment. She was harmed due to the unsuccessful of resolving her sexual harassment problem by her supervisor, Chunk. She has been told to be calm. Apart from this, the co-worker isolates her and refuge to work with her. She develops an ulcer and used all her sick leave and being diagnosed having job-related stress and took 60 days of leave-of-absence. Her fiancé also break their engagement because of peer pressure. Besides, she also failed to appeal regards on her sexual harassment case by both the union and management.

b) If you were the union or Chunk, how would you investigate her grievance? If no witnesses supported Sally’s story, what would you conclude?

Grievance is being defined as the “dissatisfaction between the employees and the employers involving the work and working environment” (Zulkiflee Daud, Mohd Faizal Mohd Isa, Wan Shakizah Wan Mohd Nor, & Zairani Zainol, 2013, p. 123). In terms of this context, Sally claimed that she was being sexually harassed by one of the crew member, Al, where he tried to grab her and kiss her when Sally was being sent out in truck with Al. However, Al denied in having any physical contact with Sally. Sally’s case is considered as individual grievance whereby formal stage grievance procedures will be taken to investigate this case.

So, if I were the union or Chuck, I will initiate with the grievance procedure once I received the complaint lodged by Sally. But before that, I need to ensure that I understand thoroughly what have been written in the grievance/complaint form by Sally and to have a basic idea on Sally’s situation and why she lodged the complaint. Then, I will write an acknowledging receipt of the grievance statement and proposed some advises on the ways to handle the grievance to Sally within the 5 working days from the day the grievance are being received.

Next, I would proposed for an investigation to be done onto Sally’s grievance by developing a separate complaint procedure that deals specifically with such a sexual harassment complaints as this is a very sensitive issue in an organization. In developing the complaint procedure, Sally would be protected from any further embarrassment in the course of investigation into the complaint, for instance, being continuously shunned by the crew of the utility company. There are three main elements in a complaint procedure; first element is the step-by-step procedure within a time frame given for each step in the process of reporting and processing the complaint lodges by the aggrieved person, second element is conducting an investigation procedure, and last element in the complaint procedure is to come out with an appeal procedure that enable the dissatisfied party to re-appeal for an investigation’s findings to a higher authority.

Thus, in dealing with the complaints by Sally, I will then request for a complaint Committee, as what may have been outlined in the company’s Code of Practice on the Prevention and Eradication of Sexual Harrassment in the Workplace. The complaint Committee shall includes at least three representatives from the other departments in the company not including the department of the accuser and the accused employee and the representatives shall have a higher position if compared to the employee that complaints and the employee that is being complaint. I shall also consider to go for a member from the outside counsel that is acquainted in dealing with the issue of sexual harassment. Not to forget, I shall go for a complaint Committee where at least half the members of the Complaints Committee are women and it is better to have Women member as the leader of the Complaints Committee.

In setting up the Complaints Committee, I will proposed a tentative day, date, and time to the committee involved asking them to come for an investigation session and the committee shall present at the day, date, and time stated. Thus, in conducting the grievance investigation, separate interview will be held for both the aggrieved person (Sally) and the one who cause the aggrievation (Al). The interviews are done separately as to minimize the possibility of practicing bias and also to test the validity and reliability of the justification given by the parties involved. Apart from that, the investigation is carried out based on the 5W1H approach; who is involved in this case, what have happened, when did the case happened, where did the case takes place, and how did it happened? Both the parties, the aggrieved party (Sally) and the one who caused the aggrievation (Al) are given the fair chance to clarify and justify themselves. Other than the both parties involved, their colleagues like another women crew who also works would be called-in for the investigation session as well to know more about the parties involved, for instance, in terms of their attitudes in their working station and their personalities.

After that, the Complaints Committee will come out with the final decision on whether Al is really guilty in sexually harassing Sally or not or it is Sally who has wrongly accused Al. The next step is closely linked to the decision made by the Complaints Committee. For instance, if Al was found guilty in sexually harassing Sally, I shall know what disciplinary actions that could be taken onto Al whether by terminating him without notice and showing him show cause letter or warning letter as the Employment Acts 1955 stated that: The individual found guilty of sexual harassment may be dismissed without notice, demoted or penalized with a lesser punishment, e.g. suspension without pay for a period of up to 2 weeks. Same situation applied to Sally, disciplinary actions will be taken if Sally was found guilty in accusing and maligning Al. It may be the possible that Sally is introverted and comes from a very conservative family background complaint that she was physically and verbally harassed. It might also be the case maybe Al was Sally’s former lover and had end their relationship or Al had fallen on her but she rejected and Al was envy what’s more to know that she had engaged with another man who is also the worker in the same company.

If both the parties agreed with the final outcomes, the case is closed. But if both the parties do not agreed with the final outcomes, they are allowed to reappeal and the same investigation step will be carried on again. The investigation step will only come to an end when both the parties are agreed with the final outcomes or when one of the parties is proved to be guilty.

In this sexual harassment case, if there is no witnesses that could support Sally’s story, I would conclude that Sally’s story is not valid. Without any strong supporting elements, the validity of Sally’s story is being questioned and without any proves, I have to come out with a conclusion that the sexual harassment do not take places as what have been told by Sally. Sally’s story could only be applicable if there is a strong evidence provided to support that the sexual harassment do take places and it do have the tendency to take place. However, if it really takes place, I will seek solution for the parties who found guilty and also provide some counseling session to help her recover from her emotional and physical injuries. Whether the charges are valid or not, I will transfer Sally to other department if she agrees to avoid the conflict between Al, the crew and herself which might affect her performance or given special attention on the welfare and safety of Sally if she has to work at night.

c) How might this scenario have been prevented?

This scenario can be prevented through several ways which are organization should develop policy statement prohibiting sexual harassment, provide training to employee and employer and take all the complaints of sexual harassment seriously.

The organization should develop policy statement prohibiting sexual harassment. Based on The Code, policy statement on sexual harassment is a published message to all the members in organization which aim to create non-sexual harassment working environment. From the Sally case, it is clearly shown the co-worker doesn’t have a clear understanding on what sexual harassment is. A clear definition of sexual harassment is required include in the policy so that employee and employer can understand it and try to avoid doing it.

Secondly, through provide training to employee and employer also can prevent sexual harassment. An effective policy, tied with training for all employer and employee will help in preventing harassment (Prevention of Sexual Harassment, n.d.). The training should teach what is sexual harassment is, procedure to complaints when facing such situation and etc. This can create awareness for all the staff to prevent sexual harassment with the knowledge gained during the training session.

Lastly, the upper management should take complaints seriously rather treat it as small case. From the Sally case, we could see that her supervisor doesn’t treat it seriously. Instead of taking action on Al but the supervisor ask to keep her sense of humor and he just asked Al to keep his hands to himself. In fact, this obviously is a sexual harassment case and should take action quickly so that Sally’s right is protected. Due to the failure of taking complaint seriously, Sally being isolated by the co-workers and force to took leave because of job-related stress. It is important for the upper management especially immediate supervisor to take complaints seriously, take action on it, and figure it out whether sexual harassment exists or not. This is to ensure that the victim can be protected from being harass again.

In conclusion, this scenario can be prevented through develop policy statement prohibiting sexual harassment, provide training to employee and employer and take all the complaints of sexual harassment seriously. This is to ensure Sally’s case won’t happened again.