Aspirenxt Sdn Bhd v Nirmlina a/p Amal Das [2024] 10 MLJ 524

Malayan Law Journal Reports · 26 pages

HIGH COURT (KUALA LUMPUR)

ROZ MAWAR JC
CIVIL SUIT NO WA-22NCvC-346–06 OF 2022
31 January 2023
Case Summary

Tort — Damages — Claim for — Plaintiff claimed against defendant for defamation, intimidation
and extortion, harassment, and unlawful interference with trade — Defendant’s actions and/or
conduct after being terminated by plaintiff — Defendant counterclaimed for salary and payment in
lieu of notice of termination and sexual harassment by plaintiff’s director — Whether plaintiff had
proven that defendant committed defamation, intimidation and extortion, harassment against
plaintiff and unlawful interference with plaintiff’s trade and/or business — Whether defendant’s
counterclaim for salary and payment in lieu of notice of termination could succeed — Whether
defendant’s counterclaim for sexual harassment should be allowed — Whether plaintiff entitled to
damages

The defendant who was employed by the plaintiff as its business development manager, was terminated
due to the reasons of unprofessional conduct and failure to adhere to company policies. Upon receipt of
the termination letter, the defendant responded that she would challenge it in court. The defendant had
then directed an email to the plaintiff’s director blaming him for terminating her and added a screenshot
picture taken from a video call of a personal call the defendant had with the plaintiff’s director (‘the video
call screenshot’). The defendant also asked for a settlement of RM100,000. There was no reply from the
plaintiff’s director and the defendant sent out to various parties that included the plaintiff’s employees and
management and its business partners, vide WhatsApp application and her social media applications
and/or platforms, screenshots of: (a) a selective part of the defendant’s conversation with the plaintiff’s
director months earlier that showed only the plaintiff’s director’s messages without hers that contained
profanities and vulgarities; and (b) the video call screenshot. Having received no reply, the defendant
pressed by sending out a follow-up email seeking response in 15 minutes. The plaintiff still did not
respond and thus the defendant shot out another email. The plaintiff’s director then replied to the
defendant and asked for her available time for the team to discuss should she want to settle amicably. The
defendant replied and sought RM200,000 as settlement. The plaintiff’s director responded seeking the
defendant’s time to hash out the terms of a settlement agreement. The defendant responded stating her
terms as per what she had stated. The plaintiff had not given in to any of her demands and the defendant
subsequently sent an email to the Ministry of

[2024] 10 MLJ 524 at 525

Human Resources Malaysia an image of the plaintiff’s director with a close-up of a finger that blocked his
face labelled ‘simbol lucah’. The plaintiff then informed the defendant that it was prepared to pay the
defendant’s wages in lieu of notice immediately upon the return of its laptop by the defendant, but the
 Aspirenxt Sdn Bhd v Nirmlina a/p Amal Das, [2024] 10 MLJ 524

defendant refused and asked for the payment prior to its return. The plaintiff’s claim against the
respondent stemmed from defamation, intimidation and extortion, harassment, and unlawful interference
with trade. The relief sought by the plaintiff were: (i) an injunction to restrain the defendant from any
further disruption and/or interference and/or harassment of the plaintiff’s business activities and/or clients
and/or employees and/or affiliates; (ii) an injunction to restrain the defendant from causing further damage
to the plaintiff’s reputation; and (iii) damages.
Held:

(1) There was nothing in the defendant’s statement in the email sent to the Ministry of Human
Resources with the attachment of the video call screenshot, giving its plain and ordinary meaning,
that imputed any dishonourable or discreditable conduct or motives on the part of the plaintiff.
Due to the fact that a company like the plaintiff could not be injured by its feelings, it must be
proven on a balance of probabilities that the contended statement had hurt its pocket and/or
injured its trade. In totality, the evidence adduced by the plaintiff had not fulfilled the elements of
the defamation on a balance of probabilities (see paras 28–29 & 31).
(2) The defendant had meant to threaten the plaintiff’s director with the exposure should she not get
her way although she was already doing it as she had blasted the screenshots of the selected
WhatsApp messages from him and the video-call screenshot to numerous groups chats and her
social media platforms. Although the defendant had the intention to threaten and intimidate the
plaintiff’s director and may have even carried out her threats to a certain extent, the plaintiff was
not intimidated. No evidence of the plaintiff having cowered to the intimidation of the defendant.
The plaintiff was not of lesser power to be intimidated by the defendant (see paras 33 & 37–38).
(3) The defendant’s repeated acts of sending persistent emails and the dissemination of numerous
screenshots of the selected WhatsApp messages from the plaintiff’s director and the video call
screenshot to numerous groups chats and her social media platforms, all mounted to that definition
of tort of intentional harassment. It had served to distress and annoy the plaintiff’s business and
caused the plaintiff hardship and extra costs. Thus, the defendant had committed the tort of
harassment onto the plaintiff. The defendant was directed to take down all such posts from her
social media platforms and she was prohibited from further

[2024] 10 MLJ 524 at 526

circulating or re-circulating the screenshot of the selected WhatsApp messages and the video call
screenshot (see paras 43–45).
(4) It was the defendant’s intention to injure the plaintiff vis a vis its director and hence there was an
intention on the part of the defendant. However, the plaintiff had failed to satisfy that her conduct
although harassment, amounted to actual interference with its trade or business. The plaintiff did
not prove on a balance of probabilities that an injury had occurred to its trade (see paras 47–48).
(5) The defendant was entitled to her salary and the payment in lieu of notice of termination.
However, she had yet to return all of the plaintiff’s assets which were still in her possession. The
payment would be settled upon the return of the plaintiff’s assets and hence, the defendant’s
counterclaim could not succeed (see para 49).
(6) There were no complaints to the plaintiff on the alleged sexual harassment. Even after the receipt
of the termination of the defendant’s employment, she did not inform the plaintiff’s human
resources manager of all the allegations that she was now claiming. The defendant’s language in
her communications was filled with profanities with constant and repeated usage of disgraceful
terms and the plaintiff’s director likewise seemed to respond in such a manner too. Their

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relationship was consensual. The matter seemed to have been on a personal level. It was
unprofessional, particularly on the part of the plaintiff’s director but on a balance of probabilities
it did not seem to equate sexual harassment on the part of the plaintiff’s director. Further, there
was an absence of any medical report to show signs or consequences of the defendant having been
through traumatic episode. There was no evidence to corroborate her claims of mental stress,
insomnia, depressive disorders and anxiety as a result of the plaintiff’s director’s alleged sexual
harassment. In the circumstances, the defendant’s counterclaim for sexual harassment against the
plaintiff was dismissed. On her claim for loss of earnings — evidence showed that the defendant
was ready to resign and did not want to stay with the plaintiff. The defendant was evasive,
inconsistent, and sometimes flippant. On a balance of probabilities, she had not succeeded in
proving her claim for loss of earnings (see paras 66 & 70–74).
(7) The sum of RM100,000 for damages sought by the plaintiff was rather unreasonable given that the
defendant’s actions of harassment were contained to the incidents following the termination of her
employment. Thus, the damages for the tort of harassment committed by the defendant was
awarded in the sum of RM20,000 (see para 75).

Defendan yang bekerja untuk plaintif sebagai pengurus pembangunan perniagaan, telah diberhentikan
dengan sebab kelakuan tidak profesional dan

[2024] 10 MLJ 524 at 527

kegagalan mematuhi polisi syarikat. Setelah menerima surat pemberhentian, defendan menjawab bahawa
dia akan mencabarnya di mahkamah. Defendan kemudian menghantar email kepada pengarah plaintif
dengan menyalahkannya kerana memberhentikan dia dan menyertakan tangkapan layar yang diambil dari
panggilan video perbualan peribadi defendan dengan pengarah plaintif (‘tangkapan layar panggilan
video’). Defendan juga meminta penyelesaian sebanyak RM100,000. Tiada balasan daripada pengarah
plaintif dan defendan menghantar tangkapan layar perbualannya dengan pengarah plaintif kepada pelbagai
pihak termasuk kakitangan dan pengurusan plaintif serta rakan perniagaannya, melalui aplikasi WhatsApp
dan aplikasi media sosialnya dan/atau platformnya, yang mengandungi: (a) sebahagian perbualan
defendan dengan pengarah plaintif beberapa bulan sebelumnya yang hanya menunjukkan mesej pengarah
plaintif tanpa mesej defendan yang mengandungi perkataan kesat dan lucah; dan (b) tangkapan layar
panggilan video tersebut. Selepas tiada balasan, defendan meneruskan dengan menghantar email susulan
meminta balasan dalam masa 15 minit. Plaintif masih tidak membalas dan defendan menghantar email
lagi. Pengarah plaintif kemudian membalas defendan dan meminta masa yang sesuai untuk berbincang
secara aman. Defendan membalas dan meminta RM200,000 sebagai penyelesaian. Pengarah plaintif
meminta masa defendan untuk merangka terma perjanjian penyelesaian. Defendan membalas dengan
menyatakan terma yang telah dimintanya. Plaintif tidak memenuhi sebarang permintaan defendan dan
defendan kemudiannya menghantar email kepada Kementerian Sumber Manusia Malaysia dengan imej
pengarah plaintif dengan tangkap dekat jari yang menutup wajahnya yang diberi label ‘simbol lucah’.
Plaintif kemudian memaklumkan kepada defendan bahawa mereka bersedia membayar gaji defendan
sebagai ganti notis sejurus selepas pemulangan laptop syarikat, tetapi defendan menolak dan meminta
bayaran sebelum pemulangan. Tuntutan plaintif terhadap defendan berpunca daripada fitnah, intimidasi
dan pemerasan, gangguan, dan campur tangan tidak sah dengan perdagangan. Relif yang dipohon oleh
plaintif adalah: (i) injunksi untuk menghalang defendan daripada sebarang gangguan dan/atau campur
tangan dan/atau gangguan terhadap aktiviti perniagaan plaintif dan/atau pelanggan dan/atau kakitangan
dan/atau gabungan; (ii) injunksi untuk menghalang defendan daripada menyebabkan kerosakan lanjut
terhadap reputasi plaintif; dan (iii) ganti rugi.

Diputuskan:

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(1) Tiada apa-apa dalam kenyataan defendan dalam email yang dihantar kepada Kementerian Sumber
Manusia dengan lampiran tangkapan layar panggilan video itu yang memberi makna biasa dan
jelas yang menyatakan kelakuan atau motif yang tidak beretika atau tidak boleh dipercayai di
pihak plaintif. Oleh kerana syarikat seperti plaintif tidak boleh dilukai oleh perasaannya, ia perlu
dibuktikan pada imbangan

[2024] 10 MLJ 524 at 528

kebarangkalian bahawa kenyataan yang dipertikaikan itu telah merugikannya dan/atau merosakkan
perniagaannya. Secara keseluruhannya, keterangan yang dibawa oleh plaintif tidak memenuhi
unsur fitnah pada imbangan kebarangkalian (lihat perenggan 28–29 & 31).
(2) Defendan berniat mengancam pengarah plaintif dengan pendedahan jika dia tidak mendapat
kehendaknya walaupun dia sudah melakukannya dengan menyebarkan tangkapan layar mesej
WhatsApp terpilih daripadanya dan tangkapan layar panggilan video kepada banyak kumpulan
bual dan media sosialnya. Walaupun defendan mempunyai niat untuk mengancam dan menakut-
nakutkan pengarah plaintif dan mungkin telah melaksanakan ancamannya sehingga ke tahap
tertentu, plaintif tidak merasa terancam. Tiada keterangan plaintif terkesan oleh intimidasi
defendan. Plaintif tidak berada dalam kedudukan kuasa yang lebih rendah sehingga boleh
diintimidasi oleh defendan (lihat perenggan 33 & 37–38).
(3) Tindakan berulang defendan menghantar email yang berterusan dan menyebarkan banyak
tangkapan layar mesej WhatsApp terpilih dari pengarah plaintif dan tangkapan layar panggilan
video ke banyak kumpulan bual dan media sosialnya, semuanya adalah dalam definisi tort
gangguan yang sengaja. Ini menyebabkan gangguan dan menyusahkan perniagaan plaintif serta
menyebabkan kesukaran dan kos tambahan terhadap plaintif. Oleh itu, defendan telah melakukan
tort gangguan terhadap plaintif. Defendan diarahkan untuk mengeluarkan semua pos tersebut dari
media sosialnya dan dilarang daripada menyebarkan atau mengedarkan semula tangkapan layar
mesej WhatsApp terpilih dan tangkapan layar panggilan video (lihat perenggan 43–45).
(4) Adalah niat defendan untuk mencederakan plaintif vis a vis pengarahnya dan oleh itu terdapat niat
di pihak defendan. Namun, plaintif gagal membuktikan bahawa kelakuannya walaupun gangguan,
bersamaan dengan gangguan sebenar terhadap perniagaan atau perdagangan mereka. Plaintif tidak
membuktikan pada imbangan kebarangkalian bahawa kecederaan telah berlaku kepada
perdagangan mereka (lihat perenggan 47–48).
(5) Defendan berhak menerima gajinya dan bayaran ganti notis pemberhentian. Walau bagaimanapun,
dia belum mengembalikan semua aset plaintif yang masih dalam miliknya. Bayaran akan
diselesaikan setelah pengembalian aset plaintif dan oleh itu, tuntutan balas defendan tidak boleh
berjaya (lihat perenggan 49).
(6) Tiada aduan kepada plaintif mengenai dakwaan gangguan seksual. Malah selepas menerima
pemberhentian kerja defendan, dia tidak memaklumkan pengurus sumber manusia plaintif
mengenai semua

[2024] 10 MLJ 524 at 529

dakwaan yang kini dia tuntut. Bahasa defendan dalam komunikasinya penuh dengan perkataan
kesat dengan penggunaan istilah-istilah yang memalukan secara berulang-ulang dan pengarah
plaintif juga kelihatan membalas dengan cara yang sama. Hubungan antara mereka adalah
berdasarkan persetujuan. Perkara ini kelihatan bersifat peribadi. Ia tidak profesional, terutamanya
di pihak pengarah plaintif tetapi pada imbangan kebarangkalian ia tidak kelihatan seperti gangguan
seksual di pihak pengarah plaintif. Tambahan lagi, tiada laporan perubatan menunjukkan tanda-

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tanda atau akibat defendan telah melalui episod traumatik. Tiada keterangan untuk menyokong
dakwaannya mengenai tekanan mental, insomnia, gangguan kemurungan dan kebimbangan akibat
dakwaan gangguan seksual oleh pengarah plaintif. Dalam keadaan ini, tuntutan balas defendan
terhadap gangguan seksual ke atas plaintif ditolak. Mengenai tuntutannya untuk kehilangan
pendapatan — keterangan menunjukkan bahawa defendan bersedia untuk berhenti kerja dan tidak
mahu terus bekerja dengan plaintif. Defendan bersikap mengelak, tidak konsisten, dan kadang-
kadang remeh. Pada imbangan kebarangkalian, dia tidak berjaya membuktikan tuntutannya untuk
kehilangan pendapatan (lihat perenggan 66 & 70–74).
(7) Jumlah RM100,000 bagi ganti rugi yang diminta oleh plaintif agak tidak munasabah
memandangkan tindakan gangguan defendan terhad kepada insiden-insiden selepas
pemberhentiannya. Oleh itu, ganti rugi bagi tort gangguan yang dilakukan oleh defendan
diberikan sebanyak RM20,000 (lihat perenggan 75).]

Cases referred to

Chok Foo Choo @ Chok Kee Lian v The China Press Bhd [1999] 1 MLJ 371, CA (refd)

Dato’ Sri Dr Mohamad Salleh bin Ismail & Anor v Nurul Izzah bt Anwar & Anor [2021] 2 MLJ 577,
FC (refd)

Harry Wong Wei Chen v Petroliam Nasional Bhd (Petronas) [2021] ILJU 2, IC (refd)

Leo Pharmaceutical Products Ltd A/S (Lovens kemiske Fabrik Produktionsaktieselskab) v Kotra
Pharma (M) Sdn Bhd [2009] 5 MLJ 703, HC (refd)

Mak Khuin Weng v Melawangi Sdn Bhd [2016] 5 MLJ 314; [2016] 8 CLJ 831, CA (refd)

Malcomson Nicholas Hugh Bertram & Anor v Naresh Kumar Mehta [2001] 4 SLR 454; [2001] 3 SLR
(R) 379, HC (refd)

Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor [2016] 4 MLJ 282, FC (refd)

Morgan v Fry [1968] 2 QB 710, CA (refd)

Rookes v Barnard [1964] AC 1129, HL (refd)

[2024] 10 MLJ 524 at 530

Sarawak Energy Berhad & Anor v Peter Kallang & Ors [2016] MLJU 775, HC (refd)

Shahrin Abdul Mutalib v Worldwide Fund for Nature Malaysia [2019] 2 LNS 2233, IC (refd)

Sitt Tatt Berhad v Flora a/p Gnanapragasam & Anor [2006] 1 MLJ 497, HC (refd)

Syed Husin Ali v Sharikat Penchetakan Utusan Melayu Berhad & Anor [1979] 2 MLJ 56 (refd)
Legislation referred to

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 Aspirenxt Sdn Bhd v Nirmlina a/p Amal Das, [2024] 10 MLJ 524

Employment Act 1955 s 2, Part XVA

Industrial Relations Act 1967 ss 20(3), 54, 54(1)

Mohd Rezan Ezra Muhammad Mosinal (with Nandakumar S Haridas and Chris Lam) (Thomas
Phillip) for the plaintiff.
Valerie Sya Kit Yin (with Angelie Low Lu-Yen and Patricia Louis a/p Ronald Louis) (Wong & Lu-Yen
Partnership) for the defendant.

Roz Mawar JC:

[1] Like the dramas ever so popular on the screen, this suit where the employer sought the aid of the law
for redress of defamation and interference of its trade by a former employee, is laced with alleged sexual
harassment. The employer plaintiff’s claim against the respondent (a former employee) stems from
defamation, intimidation and extortion, harassment, and unlawful interference with trade. The reliefs
sought by the plaintiff are:
(a) an injunction to restrain the defendant from any further disruption and/or interference and/or
harassment of the plaintiff’s business activities and/or clients and/or employees and/or affiliates;
(b) an injunction to restrain the defendant from causing further damage to the plaintiff’s reputation;
and
(c) damages against the defendant as a result of her defamation, intimidation, harassment and
unlawful interference with trade against the plaintiff.

[2] On its way to trial which was held for two days (14 August 2023 and 15 August 2023) via hybrid as
the plaintiff’s witnesses were stationed in Singapore and the United Kingdom, the plaintiff had sought for
an interim injunction. It was allowed by this court only as to restrain the defendant from communicating,
disclosing, discussing and/or disseminating any and all communication and/or information relating to the
plaintiff or any of the plaintiff’s employees and or directors that the defendant had obtained and/or was
part of an/or was privy to throughout the defendant’s employment by the

[2024] 10 MLJ 524 at 531

plaintiff with the exception for the purpose of filing and/or deposing affidavits required thereto for the
purposes of this suit and the complaint filed at the Department of Industrial Relations, until the disposal of
the suit.

[3] An additional interim order was to restrain the defendant from contacting and/or communicating with
the plaintiff’s customers and/or business partners and/or the plaintiff’s employees with regards to any of
the plaintiff’s affairs, including any matters relating to the plaintiff’s directors and/or the plaintiff’s
employees with the exception for the purpose of filing and/or deposing affidavits required thereto for the
purposes of this suit and the complaint filed at the Department of Industrial Relations, until the disposal of

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the suit. A search or application for copies of the cause papers to this suit by non-parties may only be
allowed with the consent of this court.

[4] The plaintiff (an information technology solutions provider) employed the defendant on 31 March
2021 as its Business Development Manager. She was terminated on 20 June 2022. According to the
plaintiff, the reasons were that the defendant’s conduct was unprofessional, and she had failed to adhere to
company policies. The reasons were stated as follows:

– Multiple unprofessional and abusive behavior towards colleagues, manager on various platforms even after it was communicated to
you to comply to the professional conduct and communication in the organization.

– Failure to adhere to company processes (Failed to clock in & out on daily time attendance).

[5] Whether such conduct on the part of the defendant was true or the termination was justified, is not
before this court as it is handled by the Labour Office. The cause of action before this court stemmed from
the defendant’s conduct pursuant to the letter of termination. Thus, at best the evidence related to why she
was terminated shows the propensity of her actions and/or conduct for this court’s deliberation on the
events that took place consequent to the defendant’s termination. This court took note of the basis of the
defendant’s termination as testified by the plaintiff’s two witnesses (PW1 oversees the sale and operations
of the plaintiff in Malaysia who was the defendant’s supervisor, and the plaintiff’s director). Evidence
adduced was that in the plaintiff’s view, the defendant’s unprofessional and abusive behaviour toward her
colleagues occurred regularly and on various platforms even after several warnings and/or notifications.
Emails, messages on Teams application and WhatsApp applications have formed the evidence that
corroborated the plaintiff’s contention.

[6] Upon receipt of the termination letter on 20 June 2022, the defendant had responded to the plaintiff’s
Human Resources Manager via email that she

[2024] 10 MLJ 524 at 532

would challenge it in court. She had stated:

I disagree with the content of your letter and if you are a qualified HR (which I was informed that you are not by Tony) I’m sure you
would know that you are to provide a show cause letter prior to dismissing anyone for disciplinary reason.

[7] The ‘Tony’ that she had referred to is the plaintiff’s director who testified as its second witness. The
defendant had then directed an email to him blaming him for terminating her. This email was copied to
PW1. The time stamp of the email is 8:01:24 AM. She had added a screenshot picture taken from a video
call of a personal call the defendant had with the plaintiff’s director (the videocall screenshot). The photo
is of a finger in the foreground that seems to be the plaintiff’s director and his face can be seen in the
background almost covered by the finger. She stated:

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Further to my earlier email, not only disagree to Ariels letter I would also like to add the pic as part of this discussion.

Now without prejudice to my claim on the unlawful termination by AspireNXT to the Industrial Court and my right to be reinstated and
without admitting to any fault, I would like to ask for a settlement of RM100,000.00 so AspireNXT and me could depart peacefully.

I’ll wait for your reply?

[8] There was no reply from the plaintiff’s director who had forwarded the matter to the plaintiff’s
Human Resources Manager to handle. The defendant then emailed to inform that Merchantrade was
choosing AspireNXT and she wanted good commission as she understood that the project was huge. She
had also attached an item to the email which she stated: ‘Also, please see attached, this is an insult?’.

[9] In the meantime, the defendant had sent out a series of screenshots to various parties that included the
plaintiff’s employees and management, its business partners. There is evidence where she had sent them
to multiple third parties outside of the plaintiff. They were made vide WhatsApp application and her
social media applications and/or platforms. The screenshots were:
(a) a selective part of the defendant’s conversation with the plaintiff’s director months earlier (22
April 2022 to 10 May 2022) that showed only the plaintiff’s director’s messages without hers. The
plaintiff’s director’s messages contained profanities and vulgarities; and
(b) the video call screenshot.

[10] In response to that the plaintiff had removed her from the chat groups and blocked her. The
plaintiff’s business partners were informed that the

[2024] 10 MLJ 524 at 533

defendant had been terminated from its employment as of 20 June 2022 and was no longer representing it.

[11] Back to the email communications, having received no reply, the defendant pressed by sending out a
follow-up email seeking response in fifteen minutes. She stated that she would inform Merchantrade of
the current situation as her discussions with them were scheduled that day. The plaintiff had not
responded via email. So, she shot out another email to the plaintiff’s director and PW1, and copied to the
Human Resources Manager which she stated:

I see that there is no reply from AspireNXT which I take it as AspireNXT has no intention to settle this amicably. I will then do the
needful on my side.

I honestly believe in good faith that all the staffs at the Aspire NXT should be warned about you Tony.

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Since some of them has blocked me on WhatsApp maybe a Linkedln status update would have better reach. @Mahesh_K, please do
like my post and reshare it. Thanks.

[12] The plaintiff’s director then replied to the defendant and had put on record that they had tried to
contact her to settle her grouses amicably although her actions showed an opposite intention. He asked for
her available time for the team to discuss should she want to settle amicably. He wrote:

You continuing to threaten me and my company is not in the right direction for a person looking at monetary benefit for termination. So
as mentioned above please let us know a time and date of your availability and we will fix a meeting to settle. Thanks.

[13] The defendant replied (copied to PW1 and the plaintiff’s Human Resources Manager) and sought
RM200,000 as settlement in exchange for peace, in her words ‘this is my last settlement offer of RM200k
(not taxable) non-negotiable, to be confirmed by end of tonight (MY time), in exchange of our peace. I
can write the settlement agreement to include your right to be protected, you can very well add your terms
into the agreement’. She stated her reason for the increment of her settlement was because the plaintiff’s
business partners were notified that she had been terminated. She had also put on record:

i) If I share anything about you to the public, I’m only going to tell you the truth. No caption needed just screenshots.

ii) Again as I said, I don’t have to speak, I can just show. And what I show is something the people should know for their own
benefit.
iii) So do you want to settle or you don’t want to settle?

[2024] 10 MLJ 524 at 534

[14] The plaintiff’s director responded seeking the defendant’s time to hash out the terms of a settlement
agreement. The defendant responded stating her terms as per what she had stated. She further wrote:

Once I go to the IR, you do know I would need to bring whatever I have against you and the company to protect myself. By then, it’ll be
too late.

I’ll be at the IR at 9am tomorrow. Hence I want confirmation of our terms to settle by end of tonight MY time.

[15] The plaintiff then informed the defendant vide email that a law firm has been appointed to assist in
an amicable resolution. The defendant replied and copied her email to various employees of the plaintiff
that she wanted to settle it that day itself. She had also greeted the lawyer appointed with reference of
being acquainted with him earlier in her life.

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[16] PW1 lodged a police report the next day on 21 June 2022 to alert the authorities on the possible
offence of extortion. The police report contained the defendant’s demand for RM100,000 and the
increased amount of RM200,000. The plaintiff contended that the day after on 22 June 2022 the defendant
increased her offer of settlement to RM250,000. Lastly on 23 June 2022 the plaintiff claimed that the
defendant demanded RM350,000 and that she had threatened to disclose confidential matters about the
plaintiff unless she was paid. All these were not cross-examined by the defendant.

[17] The defendant had also copied an email to the wife of the plaintiff’s director on 23 June 2022 and an
email on 22 June 2022. These facts were not cross-examined.

[18] She had alleged numerous misbehaviours against the plaintiff’s director. The plaintiff had not given
in to any of her demands. This was communicated to her on 22 June 2022 through the plaintiff’s lawyers.

[19] Then on 7 July 2022 she sent an email to the Ministry of Human Resources Malaysia an image of
the plaintiff’s director with a close-up of a finger that blocked his face labelled ‘simbol lucah’. She had
requested that it be forwarded to the Ministry of Human Resources.

[20] In spite of the ex parte interim injunction order of 14 July 2022, the defendant on 22 July 2022 sent
an email to the plaintiff’s director which she had copied to the Companies Commission Malaysia that
attached the said email and image she had sent to the Ministry of Human Resources. The plaintiff’s laptop
remains in the defendant’s possession. On 3 August 2022 the plaintiff informed the defendant that it was
prepared to pay the defendant’s wages in lieu of notice immediately upon the return of its laptop by the

[2024] 10 MLJ 524 at 535

defendant. But the defendant refused, asking for the payment prior to its return. The defendant as at trial
was employed by a business partner of the plaintiff.

[21] All those facts were agreed to and confirmed at trial. To be determined by this court is whether the
plaintiff had proven on a balance of probabilities that the defendant had indeed committed defamation, the
tort of intimidation, extortion, harassment against the plaintiff and had unlawfully interfered with the
plaintiff’s trade and/or business. Additionally, this court also is to determine the defendant’s counterclaim.
She had claimed that the plaintiff had failed to pay her the salary and the amount in lieu of notice of
termination together with commission due to her. A rather more serious claim is her allegation for sexual
harassment by the plaintiff’s director without protection from the plaintiff as employer, and as a result the
defendant had experienced depression, insomnia, depressive and anxiety disorder. The defendant had also
alleged she was placed under unreasonable pressure to execute her workload and additionally for loss of
earning. This court if it finds for the defendant on all her counterclaims, is to determine the amount of
damages to be awarded thereto.

[22] Assessment by this court includes the consideration of the evidence adduced by the plaintiff through
the testimonies of its manager and director, and testimony of the defendant. Their demeanour and candour
are also regarded. The defendant submitted that her email to the Ministry of Human Relations on 7 July

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2022 that contained the screenshot of the plaintiff’s director must be disregarded by this court as it is
expressly prohibited by s 54 Industrial Relations Act 1967 (‘the IRA’) which states:

(1) Where a trade dispute relates to matters as to which negotiation or conciliation proceedings have taken place under this Act,
no evidence shall be given in the proceedings before the Court as to such negotiation or conciliation proceedings other than a
written statemen in relation thereto agreed to and signed by the parties to the dispute.

(2) In a proceeding before the Court on a reference to the Court under subsection 20(3), no evidence shall be given of any
proceeding before the Director General under subsection 20(2) other than a written statement in relation thereto agreed to and
signed by the parties to the reference.
(3) No evidence shall be given in proceedings before the Court with regard to any offer relating to any matter connected with the
trade dispute made without prejudice by any person or trade union except with the consent of that person or trade union.

[23] This court does not agree with the contention of the defendant as this is not a trade dispute as
referred to in s 54(1) of the IRA. Neither is this action a reference under s 20(3) of the IRA nor is it a
proceeding regarding any offer

[2024] 10 MLJ 524 at 536

relating to any matter connected with the trade dispute. This is a claim for defamation, tort of intimidation
and harassment (that includes a sexual nature contended by the defendant) and unlawful interference to
the plaintiff’s trade. So, this court will regard all the evidence adduced at trial to deliberate the plaintiff’s
case against the defendant, and the defendant’s counterclaim.

DEFAMATION AGAINST THE PLAINTIFF

[24] As cited by the plaintiff, the elements of defamation as upheld by the Federal Court in Dato’ Sri Dr
Mohamad Salleh bin Ismail & Anor v Nurul Izzah bt Anwar & Anor [2021] 2 MLJ 577 at para 19 on p
590 of the judgment — ‘In order to prove a claim in defamation, it is also essential that the offending
words are not only defamatory and that they are published but also that they identify the plaintiff as the
person defamed’.

[25] The plaintiff’s case against the defendant in contending defamation was the screenshots sent by the
defendant to numerous employees, business partners and clients of the plaintiff, and also third parties.
They consisted of a selective part of the defendant’s WhatsApp application communication from 22 April
2022 to 10 May 2022 (WhatsApp screenshot) and from a video call taken from a personal call the
defendant had with the plaintiff’s director (the video call screenshot).

[26] What is evident and cannot be disputed is that there were no statements made by the defendant that
accompanied all those screenshots that she had sent. The Federal Court case of Syed Husin Ali v Sharikat
Penchetakan Utusan Melayu Berhad & Anor [1979] 2 MLJ 56 referred to by the plaintiff held at p 58
that:

Thus, the test of defamatory nature of a statement is its tendency to excite against the plaintiff the adverse opinion of others, although no

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one believes the statement to be true. Another test is: would the words tend to lower the plaintiff in the estimation of right-thinking
members of society generally? The typical type of defamation is an attack upon the moral character of the plaintiff attributing crime,
dishonesty ingratitude or cruelty.

[27] There must first and foremost be a statement before this court can assess whether that statement is
indeed defamatory against the plaintiff. The deliberation of the words used is required to conclude
whether they assault the plaintiff’s business reputation, image and good name that affected its business.
There is an absence of any statements in the screenshots that she had sent. The Court of Appeal’s decision
in Chok Foo Choo @ Chok Kee Lian v The China Press Bhd [1999] 1 MLJ 371 that the plaintiff referred
to in imploring this court to apply the test of giving the words published in their natural and ordinary
meaning cannot be applied here for the lack of any statement by the defendant.

[2024] 10 MLJ 524 at 537

[28] The email the defendant sent to the Ministry of Human Resources on 7 July 2022 with the
attachment of the video call screenshot bore the following statement:

Ingin saya keplkan kembali screenshot Tony Matthews, pengarah Syarikat majikan yang dengan bangganya meunjukkan symbol lucah
yang saya pohon supaya pihak Tuan tonjolkan ke Ministry of Human Resource.

[29] In this court’s considered view, there is nothing in the defendant’s accompanying statement, giving
its plain and ordinary meaning, that imputes any dishonourable or discreditable conduct or motives on the
part of the plaintiff. To the common and reasonable reader, curiosity may be raised to how the video call
screenshot came about but nothing negative casted onto the plaintiff. At most, the statement was meant to
cast raised eyebrows towards the plaintiff’s director, not the plaintiff. See Dato’ Sri Dr Mohamad Salleh
bin Ismail & Anor.

[30] Furthermore, the Court of Appeal held in Mak Khuin Weng v Melawangi Sdn Bhd [2016] 5 MLJ
314; [2016] 8 CLJ 831 that for limited companies to prove defamation was done unto it, the task of
proving is more onerous:

For a limited company to succeed in libel, it must plead and prove the words complained of injuriously affect the company. It was not
sufficient to rely on an innuendo when the complaint of misconduct was clearly related to the staff of the respondent. Innuendo plays a
lesser role in defamation suit filed by a limited company when the burden of proof rests with the plaintiff to prove it injuriously affect
them.

[31] Due to the fact that a company like the plaintiff could not be injured by its feelings, it must be
proven on a balance of probabilities that the contended statement had hurt its pocket and/or injured its
trade. This court had also considered whether the plaintiff’s director can be equated to or is one and the
same as the plaintiff. There is evidence that the plaintiff’s director is a designated representative of the
plaintiff with its significant partners and customers. He represents the plaintiff in all its official business

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meetings and deals. But that cannot be said that the plaintiff’s director is the plaintiff. In totality, the
evidence adduced by the plaintiff has not fulfilled the elements of the defamation on a balance of
probabilities.

INTIMIDATION

[32] In its submissions that the defendant had committed the tort of intimidation, the plaintiff cursorily
mentioned the principles established by the House of Lords in Rookes v Barnard [1964] AC 1129. A read
through of the case is on the tort of intimidation in England and Wales. The High Court had

[2024] 10 MLJ 524 at 538

found that there were unlawful acts committed that constituted intimidation and were actionable in tort as
they had harmed the appellant. That decision was reversed by the Court of Appeal as although it
concurred that tort of intimidation existed it did not cover the case of a threat to break a contract. At p
1136 the House of Lords held:

The tort of intimidation is in essence the unlawful procurement of harm through the action of an intermediary. Its existence is well
accepted and the only issue is its extent. Lord Watson in Allen v Flood defined the tort as having two branches: one where a person
induces an intermediary to do something unlawful vis a vis the plaintiff; the other, where the intermediary is induced by unlawful means
to do something which, although not unlawful qua the plaintiff, is to his detriment, Lumley v Gye, the basis of which was that a breach
of contract is a civil wrong, is cited as authority Since the two branches stem from the same root, it would be strange if the breach of
contract were unlawful upon one branch but not unlawful upon the other.

Prima facie it is an unlawful act to break a contract, therefore it is an unlawful, and so a tortious act to procure a person to break his
contract, and if damages flow from that tortious act he can recover: Lumley v Gye. To say that a breach of contract is an unlawful act
when it is procured but not an unlawful act when it is threatened is an impossible distinction. The essence of a threat is that the
threatener or another person will do something or refrain from doing something which will or may result in harm to the person
threatened. The effect on the mind of the threatened party is the relevant matter. A threat of a breach of contract may be far greater
effect than a threat of violence, or of trespass to land or slander. In some cases the same threatened act may involve both a breach of
contract and a tort, as, for example, where a threatened breach of contract involves detinue of conversion. It would be odd if the tortious
characteristic gave rights to a third party, but not the breach of contract.

[33] In this suit, it was not so much a breach of contract that the plaintiff complained of but the
statements from the defendant that sought moneys from RM100,000 to RM350,000 to depart peacefully
or in exchange for peace. The plaintiff submitted that based on what the defendant had stated, she would
exploit confidential matters relating to personal matters between the defendant and the plaintiff’s director
to third parties, including to the wife of the plaintiff’s director. The defendant testified that she had stated
all those to pressure a reply from the plaintiff’s director for reasons for the termination and when they
were going to pay her salary. On the totality of the evidence, this court cannot accept that as the reasons
were already stated in the letter of termination dated 20 June 2022 and also through numerous
communications. The payment was undertaken by the plaintiff to be paid to the defendant upon her return
of the plaintiff’s property. This court concludes that in her mind, she had meant to threaten the plaintiff’s
director with the exposure should she not get her way although she was already doing it as she had blasted
the screenshots of the selected WhatsApp messages from him and the video-call screenshot to numerous
groups chats and her social media platforms.

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[2024] 10 MLJ 524 at 539

[34] The plaintiff submitted that the threat need not be executed, as iterated by Lord Devlin in Rookes v
Barnard at p 1209 though in this suit the plaintiff relies on all the communications that the defendant had
disseminated (an agreed fact):

What is material to C’s cause of action is the threat and B’s submission to it. Whether the threat is executed or not is in law quite
immaterial. In fact it is no doubt material because if it is executed (whether it be an assault or a breach of contract) it presumably means
that B has not complied with it; and if B had not complied with it, C is not injured; and if C is not injured, he has no cause of action.

[35] The plaintiff cited Morgan v Fry [1968] 2 QB 710 which it submitted the elements was applied in:

a threat by one person to use unlawful means, eg violence or a tort or a breach of contract, so as to compel another to obey his wishes
and the person so threatened must comply with the demand rather than risk the threat being carried out.

[36] Reference closer to home was made by the plaintiff with the citation of Sarawak Energy Berhad &
Anor v Peter Kallang & Ors [2016] MLJU 775. The High Court found that the defendants had committed
the tort of intimidation with their unlawful actions that resulted in the plaintiff’s and their agents being
forced to leave the main camp, storage area, boreholes sites, leave behind their machineries and supplies
etc and ceased or suspend the works.

[37] Applying to the facts herein, this court finds that although the defendant had the intention to threaten
and intimidate the plaintiff’s director and may have even carried out her threats to a certain extent, the
plaintiff was not intimidated. This is the finding with clear distinction of the plaintiff and the plaintiff’s
director in mind. The plaintiff had informed its business partners and/or clients. It had hired a lawyer to
handle the defendant’s demands pursuant to the termination. It had not bent to the threats. No evidence of
the plaintiff having cowered to the intimidation of the defendant. It had not paid a single cent of the
amount demanded by the defendant.

[38] The plaintiff’s director seemed to show signs of having considered the defendant’s threat or
intimidation seriously. Undoubtedly as it was his messages and his face that the defendant had threatened
to expose that invited questions as to his behaviour. He seemed to be the driving force behind the plaintiff
to firstly offer the open-door policy for negotiation to settle the matter amicably, and secondly to appoint
and entrust the matter to the professional hands of its lawyers. Again, it is stressed here that this court
does not find that the plaintiff was intimidated by the defendant’s threats as the plaintiff was not of lesser
power to be intimidated by the defendant. Unless, the role is the other way around.

[2024] 10 MLJ 524 at 540

[39] The defendant submitted that it was rather mischievous of the plaintiff to pursue this tort of
harassment when it was apparent that the facts did not fulfill the elements. The only answer could be that

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the plaintiff had equated itself to the plaintiff’s director. This court does not make such a finding. They are
separate entities and the plaintiff’s director was at liberty to pursue this under his own name but had not.

TORT OF HARASSMENT

[40] The defendant stressed that a corporation cannot be harassed. It was her submission that as per the
law of defamation, a company like the plaintiff cannot have its feelings injured. It needed to show that
there has been an injury to its trading reputation. The defendant submitted that as the plaintiff has no
capacity to feel fear or distress and as such implored this court that the claim for tort of harassment must
fail.

[41] The Federal Court in Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor [2016] 4 MLJ 282
gallantly decided at para 38:

After mulling over the matter, we arrived at a decision to undertake some judicial activism exercise and decide that it is timely to import
the tort of harassment into our legal and judicial system, with sexual harassment being part of it.

[42] In its consideration, the Federal Court acknowledges the persuasiveness of the decisions in the
English courts as the tort laws here are still very much based on the English common law principles.
There, several statutes were passed for offenses of harassment that crystalised with certainty the legal
position. Otherwise, the common law had to be developed with the need to overcome the requirement
relating to property and proprietary interest. So, the Federal Court referred to a Singaporean case of
Malcomson Nicholas Hugh Bertram & Anor v Naresh Kumar Mehta [2001] 4 SLR 454; [2001] 3 SLR (R)
379 where the facts of the case justified the introduction of a new tort of intentional harassment. The
plaintiff in that case who had been harassed and pestered by the defendant at his workplace could not sue
for trespass or private nuisance. There was no physical contact or bodily harm. The plaintiff had not
suffered any psychiatric illness. But the Singapore High Court defined harassment to mean:

… a course of conduct by a person, whether by words or action, directly or through third parties, sufficiently repetitive in nature as
would case, and which he ought reasonably to know would cause, worry, emotional distress or annoyance to another person.

[43] This court considered the defendant’s repeated acts of sending persistent emails and the
dissemination of numerous screenshots of the selected WhatsApp messages from the plaintiff’s director
and the video call screenshot

[2024] 10 MLJ 524 at 541

to numerous groups chats and her social media platforms. They were sent out to the plaintiff’s employees
and business partners. The copying of emails to the plaintiff’s other employees who were not related or
not involved in the defendant’s termination of employment and the family member of the plaintiff’s
director taken together with the blast from her WhatsApp application and her publication on her social
media platform, all mounted to that definition of tort of intentional harassment.

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[44] It had served to distress and annoy the plaintiff’s business. The plaintiff had to explain to its business
partners and employees. It caused the plaintiff hardship and extra costs by having to engage a law firm to
handle the matter. Emails had to be sent out to the plaintiff’s clients and business partners to disassociate
themselves. All clients were contacted via telephone calls to apologize for the defendant’s behaviour. A
police report was also lodged that showed the plaintiff’s alarm at the harassment which had a direct
bearing on its trade reputation. With the initiation of court proceedings, the plaintiff endures costs and
allocation of time and resources as a result of the defendant’s harassment. These facts were not
challenged. On a balance of probabilities, this court concludes that the defendant had committed the tort
of harassment onto the plaintiff.

[45] The argument by the defendant that the blast of the selected WhatsApp messages from the plaintiff’s
director and the video call screenshot to all the plaintiff’s business partners contained no messages or
written statement from her is untenable to defend against the tort of harassment as it was clearly and
certainly they were from her. She was also conscious to disseminate them on a large scale. As to the
defendant’s contention that the emails and communications on settlement were a negotiation via a two-
way conversation, this court is not inclined to agree to it. Her tone in the emails were not an invitation to
an open discussion. The words she had employed were laced with sarcasm and threat albeit unto the
plaintiff’s director. Nonetheless, the messages via WhatsApp applications and her posts on her social
media platforms are the ones this court is satisfied that tantamount to harassment. For that, damages will
be calculated accordingly below. The defendant is directed to take down all such posts from her social
media platforms and she is prohibited from further circulating or re-circulating the screenshot of the said
selected WhatsApp messages and the videocall screenshot.

UNLAWFUL INTERFERENCE WITH TRADE

[46] The plaintiff set out the elements as per Leo Pharmaceutical Products Ltd A/S (Lovens kemiske
Fabrik Produktionsaktieselskab) v Kotra Pharma (M) Sdn Bhd [2009] 5 MLJ 703:
(a) an interference with the trade or business;

[2024] 10 MLJ 524 at 542

(b) had used unlawful means;

(c) the intention was to injure; and
(d) injury occurred.

[47] Evidence show that it was the defendant’s intention to injure the plaintiff vis a vis its director. She
had intended and calculated her conduct and acts of harassment but forwarded the selected WhatsApp
messages from the plaintiff’s director and the video call screenshot to all the plaintiff’s business partners,
out of context. The explanation by the plaintiff’s director on them is deliberated when determining
whether the defendant had successfully proven her claim for sexual harassment. For this tort of unlawful
interference with the plaintiff’s trade, this court is satisfied that there was an intention on the part of the
defendant. However, the plaintiff had failed to satisfy that her conduct although harassment, amounted to
actual interference with its trade or business.

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[48] The plaintiff did not prove on a balance of probabilities that an injury had occurred to the plaintiff’s
trade. Though this court noted that business associates like Merchantrade severed business relations with
the plaintiff after this incident, there is nothing for this court to conclude that it was because of the
defendant’s action. As testified by PW1, it could be anything that spurred the end of their business
relations. The plaintiff’s director/PW2 claimed that Merchantrade and PayNet had stopped interacting
with the plaintiff’s teams after this episode, but he had only assumed that it was because of it. There was
no other evidence to corroborate the plaintiff’s contention. It may be possible but on a balance of
probabilities, this court could not find the defendant having committed the tort of unlawful interference
with the plaintiff’s business or trade.

THE DEFENDANT’S COUNTERCLAIM

Salary and payment in lieu of notice of termination

[49] On her part, the defendant claimed that the plaintiff had failed to pay her salary and the payment in
lieu of notice of termination. She was most certainly entitled to this, but she had yet to return all of the
plaintiff’s assets which until trial, were still in her possession. This court finds this claim rather
unreasonable and agrees with the position of the plaintiff that the payment which it had from the very
beginning ever so willing to pay the defendant, would be settled upon the return of the plaintiff’s assets.
This counterclaim cannot succeed.

Sexual harassment

[2024] 10 MLJ 524 at 543

[50] Through the Federal Court’s decision in Mohd Ridzwan bin Abdul Razak, sexual harassment has
been recognised by our courts. With the Malaysian Code of Practice on the Prevention and Education of
Sexual Harassment in the Workplace 1999 (the Code of Practice) and the Employment (Amendment) Act
2012 in mind, the three main elements of sexual harassment are:
(a) the occurrence of conduct that is sexual in nature;
(b) the conduct being unwarranted; and
(c) the conduct is perceived as threatening the victim’s ability to perform her job.

[51] The defendant admitted and agreed with the plaintiff that the selected WhatsApp messages from the
plaintiff’s director and the video call screenshot were personal matters. Though they were beyond
working hours, the defendant contended it did not dispense with the plaintiff’s duty as an employer to
protect its employees from sexual harassment at the workplace. An extraction from Harry Wong Wei
Chen v Petroliam Nasional Bhd (Petronas) [2021] ILJU 2 that cited Shahrin Abdul Mutalib v Worldwide
Fund for Nature Malaysia [2019] 2 LNS 2233:

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… Employer has a duty to protect its employees from any unlawful conduct including sexual harassment and to provide them with a
safe and conducive place of work …

[52] This court takes note that it is consistent with the Code of Practice and the Employment Act 1995 (as
amended). This court too takes note that the courts by Sitt Tatt Berhad v Flora a/p Gnanapragasam &
Anor [2006] 1 MLJ 497 recognised the implied term in the employee’s contract of employment when the
higher management failed to respond to the complaints by the employees. The defendant submitted that
the plaintiff had allowed its senior management, the plaintiff’s director, to sexually harass its employee,
the defendant.

[53] The defendant argued that the plaintiff had abdicated its duty to protect its employees when it found
that the late-night calls/video calls were acceptable on the basis that the defendant was required to work
beyond working hours. The plaintiff referred to the fact that both parties admitted that their conversations
via WhatsApp applications are personal in nature and not work related. On that basis the plaintiff
submitted that there existed no duty of care between the plaintiff and the defendant.

[54] Now the defendant contended that there was sexual harassment by the plaintiff’s director towards
her and that the plaintiff owed her that duty of care to protect her as its employee from sexual harassment.
The defendant referred

[2024] 10 MLJ 524 at 544

to all the messages that contain the usage of profanities, suggestions, and innuendos from the plaintiff’s
director to the defendant. It submitted that they are sufficiently repetitive to cause emotional distress and
annoyance. The defendant stressed that the plaintiff employed the blame-the-victim mentality where the
plaintiff sought to attack the defendant’s credibility faulting instances when she could not remember the
contents of certain documents during her testimony at trial.

[55] At this juncture, this court corrects the plaintiff’s contention on the duty of care owed to the
defendant. The plaintiff as the employer of the defendant has the legal obligation to ensure that the
workplace is safe from harassment including sexual harassment. Part XVA of the Employment Act 1955
mandates the plaintiff as the employer to inquire into the complaint of sexual harassment. This means that
the plaintiff must provide a mechanism to receive and deal with such complaints as defined in s 2 of the
said Act:

‘sexual harassment’ means any unwanted conduct of a sexual nature, whether verbal, nonverbal, visual, gestural or physical, directed at
a person which is offensive or humiliating or is a threat to his well-being, arising out of and in the course of his employment

[56] This court turns to the evidence adduced at trial. The evidence of plaintiff’s director/PW2 as to the
selected WhatsApp messages from the plaintiff’s director and the video call screenshot was that they were
taken out of context. As can be seen, the defendant’s messages were deleted so the messages were not
viewed in their entirety. He testified it showed his apparent frustration with the defendant of her constant

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and frequent usage of profanities that was deemed abusive when she dealt with colleagues, management,
and the plaintiff’s business associates. As to the video call screenshot, he had explained that it was when
the defendant demanded to have a similar outing treated by the plaintiff as the Singaporean team during
the Covid pandemic. The defendant told him that she would send across the bill under the name of the
plaintiff’s director and claim on behalf of the plaintiff. He did however, professed that it was
unprofessional of him, but he was sparked by the defendant whom he claimed constantly tiggered for
reactions as such.

[57] The time on the selected WhatsApp messages from the plaintiff’s director showed that it was done
outside office hours. The plaintiff’s director testified in cross-examination that as he was based in the
United Kingdom it was daytime. When there were the calls, he believed that they were related to critical
work issue. He confirmed that he did not initiate any calls. It was always the defendant and that he had
returned the missed calls from her — ‘The calls were initiated by, usually what happens is the defendant
will call me. I would have missed the call, and then you know when I see it, I would return the call. It was
not that I initiated a call at the middle of the night for her. It was always,

[2024] 10 MLJ 524 at 545

she will try to reach out to me when, as and when, if she is not getting response from team members as a
matter of escalation because she wanted to either you know, escalate to supervisor or superiors to make
sure that certain emails or messages are addressed to. But there was there were never conversations or
calls initiated by me at a late night time or disturbing her at any point in time’.

[58] The plaintiff’s director’s evidence that the selected WhatsApp messages were done to be taken out
of context because it did not show the calls the defendant had made to him but only his return missed calls
to her. He testified that the defendant’s messages were purposely deleted (her application setting was set
to disappearing messages) and that such incomplete messages would wrongly conclude the context of his
messages. He pointed out that the defendant had complained as per the WhatsApp messages that nobody
was picking up the phone and had asked the plaintiff’s director to pick up her calls. All these were evident
from the messages tendered.

[59] When asked during cross-examination as to the personal relationship he had with the defendant, he
had explained that ‘when an employee has a personal issue or concerns that they are going through, we
managers and you know supervisors try to see whether it is impacting their performance, ok we can help
them in on their day today’ — in his words he confirmed that ‘As normal we were friends. Yes. We
discussed personal matters. Yes. It is defined as a personal relationship. Yes’. He had also confirmed that
the conversations of the selected screenshots on the WhatsApp messages and the video call screenshot
were personal in nature and not related to the plaintiff.

[60] Before this court concludes its findings, consideration is made on the evidence adduced by the
defendant. The defendant had testified that she was informed by the plaintiff’s Human Resources
Manager that the latter had an affair with the plaintiff’s director and that the defendant’s termination was
to prevent further friendly communications between the plaintiff’s director and the defendant. There was
no other evidence at trial to support this contention. This fact was not suggested to the plaintiff’s director
when he was cross-examined, in fact what was clarified was that the Human Resources Manager was the
first employee in Malaysia when the plaintiff started. The plaintiff’s director confirmed that he is friends

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with her as with most of the co-workers who had joined together to build the plaintiff across different
countries.

[61] The defendant had also testified that she had disclosed to the plaintiff’s director she had borderline
personality disorder and that he had acted inappropriately making sexual overtures and remarks. She
claimed that she did not highlight this to anyone as she was uncomfortable and was very afraid to lose her
job. Not even one of these issues was asked to any of the plaintiff’s

[2024] 10 MLJ 524 at 546

witnesses. There was no doctor’s report tendered to at the very least, support her contention that she
suffers from such a disorder.

[621] The defendant claimed that after she was terminated, she had contacted one Mr Rinosh who was
the plaintiff’s pre-sales director and that he had agreed that her treatment by the plaintiff’s director was
unfortunate, but the plaintiff had failed to take steps to protect her rights. This court examined the
evidence. The messages that she had shown though did not state that this Mr Rinosh had said any of those
things. The defendant had also failed to show that he was a part of the management of the plaintiff.

[63] The defendant had also testified that the plaintiff’s director had called her ‘at wee hours of the day,
demanding video calls and when I did’nt switch on my camera, he would get upset. Many times he called
me after work hours and It was not even related to work. If I don’t pick up the call, he will continue
calling me repeatedly until I either turned off the phone or picked up the call. There’s no issue on time
difference as Tony Matthew at that material time was in Singapore. He would also use endless profanities
as seen in the screenshots tendered here. He has also called me ‘cheap’ and showed me the middle finger’.
The problem with these allegations is also that they were not suggested to the plaintiff’s witnesses in
particular the director/PW2 himself to verify or hear his explanation, and most importantly to make out
her case against the plaintiff. As to the time difference, the court finds that at the time of the selected
WhatsApp messages and the video chat screenshot, he was in the United Kingdom as he testified, he had
relocated from Singapore since April 2022.

[64] The defendant’s contentions on some alleged unethical matters that she was forced to do with the
plaintiff’s business partners were also not questioned during the plaintiff’s case. Thus, they could not be
verified. The defendant had further failed to adduce any other evidence to corroborate these claims of
hers.

[65] This court recognises the inherent complexities in cases involving sexual harassment. On one hand,
complainants often face significant challenges in bringing forth their grievances. This difficulty stems
from a variety of factors including the deeply personal and often traumatic nature of the experience,
societal stigma, fear of not being believed, and potential professional repercussions. The burden of proof
can be daunting, as these cases frequently hinge on nuanced interpersonal interactions, with limited
physical evidence or witnesses. On the other hand, defending against such accusations is equally
challenging. The accused may confront severe personal and professional consequences, compounded by
the public and emotive nature of these allegations. The risk of false accusations, though statistically rare,
adds to the complexity of these defences. Consequently, the court must exercise rigorous scrutiny and
balanced judgment, ensuring fairness and due process for both

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[2024] 10 MLJ 524 at 547

parties. It is a delicate balance to maintain the integrity of the judicial process while being sensitive to the
emotional and psychological dimensions of sexual harassment cases.

[66] There were no complaints to the plaintiff on the alleged sexual harassment. Even after the receipt of
the termination of her employment, she did not inform the plaintiff’s Human Resources Manager of all the
allegations that she is now claiming. Her contention had from the very beginning been that there was no
show cause process adhered to and thus she was wrongly terminated. She testified that she had filed an
appeal with the Industrial Relations Department that cited she was dismissed unlawfully, and the plaintiff
had failed to pay her salary. That said email that she had forwarded on 7 July 2022 to the Ministry of
Human Resources Malaysia with an image of the plaintiff’s director with the video call screenshot
labelled simbol lucah’ made no mention of any alleged sexual harassment. This would have been her best
avenue to lodge such serious complaint but her email was silent on this matter.

[67] She had also testified that during a telephone call with the plaintiff’s Human Resources Manager
after her dismissal, she had informed the latter that she did not have any relationship with the plaintiff’s
director other than a working relationship, that she did not find him attractive and was not interested in
him. According to the defendant, she had also told the Human Resources Manager that the plaintiff’s
director was a pervert. In this court’s view, it was a reaction of a woman scorned, not a victim of sexual
harassment. That email suggested that her motive was to get back at the plaintiff by embarrassing the
plaintiff’s director to ensure that she gets paid.

[68] This court observed that the defendant used profanities and crude sexual references freely in her
communications. Her language was consistently lewd and there did not seem any reservations in her
conversation with colleagues or management. From the messages, the defendant commented harshly on
her colleagues and had also spewed crude descriptions and innuendos of the sexual kind of her colleagues.
Due to the crude and rough language used, the messages will not be reproduced here in this judgment.

[69] This court examined the testimony of the defendant where she confirmed that she had a cordial
working relationship with the plaintiff’s director. Yet in the next breath she claimed that the plaintiff’s
director has a fetish where he liked it when she got angry and claimed that ‘he began acting
inappropriately including making sexual overtures and remarks’. This similar trend of answers she aired
when giving evidence in court depicted the hot-and-cold type of contentions. She makes it difficult for the
court to accept and believe her story. She exhibited disregard for authority and common courtesy in her
mannerism. Nevertheless, her allegation of sexual harassment is

[2024] 10 MLJ 524 at 548

a serious one which warranted careful consideration. This court carried a scrutiny of all the evidence to
determine whether there was sexual harassment committed by the plaintiff’s director and that the plaintiff
breached its duty as their employer.

[70] An observation is made that the defendant’s language in her communications is filled with
profanities with constant and repeated usage of disgraceful terms. The plaintiff’s director likewise seemed
to respond in such a manner too. This, the court finds extremely unprofessional. When the plaintiff waved
the banner of proper conduct, it is expected to apply the same top-down in the company. Shamefully and

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this court regards so as they were involved in sales that surely gave them daily practice of the usage of
language that are more persuasive and kinder to the ears of the listeners and the eyes of the readers, it
seemed like a norm to have had that way of communications between the defendant and the plaintiff’s
director.

[71] Looking at the relationship, this court finds on a balance of probabilities that their personal one was
consensual. The matter seemed to have been on a personal level. It was unprofessional, particularly on the
part of the plaintiff’s director but on a balance of probabilities it does not seem to equate sexual
harassment on the part of the plaintiff’s director. There is an absence of any medical report to show signs
or consequences of the plaintiff having been through such traumatic episode. There is no evidence to
corroborate her claims of mental stress, insomnia, depressive disorders, and anxiety as a result of the
plaintiff’s director’s alleged sexual harassment.

[72] In the circumstances, the defendant’s counter claim for sexual harassment against the plaintiff is
hereby dismissed.

[73] There is evidence that the defendant was prepared to leave the employment of the plaintiff before her
termination. On her claim of loss of earnings — evidence through her cross-examination showed that as
of 10 June 2022 the defendant was ready to resign and did not want to stay with the plaintiff — her
message stated as follows, although she claimed she did not remember, it was expressly confirmed that
she stated:

U think I want to stay here and rot and die with some of the world weirdest idiots???

U want me to go, take the call and give references. They asked why I’m leaving after a year. I said not suitable industry And told them
my current boss thought the same though I’ve tried my best.

[74] All the printed messages and chats that were bundled in the Common Bundle B though at trial she
denied them. This court having observed her

[2024] 10 MLJ 524 at 549

demeanour found her evasive, inconsistent, and sometimes flippant. On a balance of probabilities, she has
not succeeded in proving her claim for loss of earnings.

DAMAGES

[75] This court finds only the tort of harassment by the defendant successfully proven on a balance of
probabilities. The plaintiff had sought the sum of RM100,000 for damages for this. It is rather
unreasonable given that the defendant’s actions of harassment were contained to the incidents following
the termination of her employment on 20 June 2022. The plaintiff had to cope with the annoyance and
embarrassment and having had to control damage by engaging with its employees and business associates.
This court notes that the harassment was not over a terribly long period of time. There are also the

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direction and prohibitory orders of this court that also compensate the plaintiff with a lower amount of
damages. This court awarded damages for the tort of harassment committed by the defendant in the sum
of RM20,000. The defendant is also ordered to pay costs to the plaintiff. The plaintiff again sought for the
sum of RM100,000 but this court opines that RM65,000 is reasonable.

[76] In concluding this judgment, it is imperative to reiterate the courts’ stance that sexual harassment
constitutes a grievous misconduct, which is intolerable in any form. Such behaviour undermines the
fundamental principles of dignity, respect, and equality that are cornerstones of our society and legal
system. It is the duty of the court to safeguard the working environment from such transgressions. As
such, allegations thereof will be looked upon closely lest the victims be bereft of redress yet on the other
side to ensure that there are no false accusation which brings with it the smearing of good name and
reputation that would be difficult to untarnished.

[77] A healthy and secure workplace is essential not only for the efficient functioning of our economic
systems but also for the mental and emotional well-being of every individual who strives to earn their
living. The protection of workers from sexual harassment is not merely a legal obligation but a moral
imperative, essential for fostering a culture of respect and safety. This court is committed to upholding
these values and ensuring that justice is served, both in letter and spirit, in every case that comes before it.

Order accordingly.
Reported by Nabilah Syahida Abdullah Salleh

End of Document

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