By Nina Muslim | Bernama

Raihana (not her real name) can barely breathe in her office. 

Like many others in Malaysia, the 40-year-old caught COVID-19 in February during the Omicron spike, when the country saw cases reaching almost 30,000 daily for over a month.

As an asthma sufferer, the biggest misery for her and her colleagues, many of whom had also suffered a bout of COVID-19, is their boss who insists on chain-smoking in the office. Worse, her attempts to get her company’s Human Resources Department involved without risking her job have failed so far.

The lungs of a COVID-19 patient. — BERNAMA

“We have shortness of breath and cough continuously and we’ve become very sensitive to cigarette smoke and dust,” she told Bernama.

“One of my colleagues had to go to the extent of asking to work from home because he was too sensitive to the cigarette smoke.”

There are some 4.8 million smokers in Malaysia, most of them men. Almost half of the male population in Malaysia smoke, according to Malaysia’s 2020 World Health Organisation Framework Convention on Tobacco Control report.

While Malaysia has made strides in creating healthier and safer spaces for employees and the public, enforcement, however, has been haphazard. Enforcement officers from the Ministry of Health have occasionally raided offices with central air-conditioning systems and fined workers who were caught smoking, although such raids were far and few in between.

Malaysia made smoking in workplaces with centralised air-conditioning an offence under the Control of Tobacco Product Regulations, which came into effect on July 21, 2010. On top of that, section 15(1) of the Occupational Safety and Health Act (OSHA) 1994 also mandates employers “to ensure, so far as is practicable, the safety, health, and welfare at work of all his employees”.

Michael Cheah, lawyer specialising in employment law and industrial relations.

Michael Cheah, a lawyer specialising in employment law and industrial relations, said smoking posed a health risk to others, which meant employees were entitled to legal action under OSHA.

“There must not be any risk to the person’s health or safety. And the place that the person is working in must be adequate for their welfare when they are carrying out their duties,” he said.

Smoking can cause serious diseases including cancer, heart disease, stroke and lung diseases. Inhaling second-hand smoke from tobacco smoked by others is also dangerous, possibly increasing the person’s risk of developing the above diseases and others by 20 to 30 percent.

Knowing that, Raihana and her colleagues at first tried various ways to get their boss to stop smoking in the office, such as hanging No Smoking signs on the walls, or at least getting him to close the door to his office. None worked. Finally, they decided to report him to the company’s HR. 

However, she said, so far the HR department has been reluctant to take up their complaints without them submitting photographic evidence and an official complaint first, leaving their lungs at the mercy of a smoke-filled floor. 

Step by step

Employment and occupational safety experts agree that the HR department should be the employees’ first stop in trying to address health and safety issues at the workplace. However, they said the HR department should not have asked for evidence before conducting an investigation into the health and safety violation.

In an ideal world, the HR department would have followed up on Raihana’s report instead of making her and her colleagues conduct the investigation for them. 

Rosman Johar Abdullah, corporate governance expert. — BERNAMA

Corporate governance expert Rosman Johar Abdullah told Bernama that HR departments had a responsibility to follow up on complaints lodged by employees immediately, such as going to Raihana’s floor and seeing for themselves.

“It’s wrong for the HR (department) not to investigate,” he said. “If I have the information, I can just give you the information … that is good enough. The rest must be taken up by the party receiving the complaint.”

He said any evidence the complainant provides should be to bolster the case against the offending party, and not be a requirement to launch an investigation. The process should then play itself out – after establishing that the offending party smoked like a chimney in the office, HR should give the offending party a chance to explain why he smoked in the office. 

Should he fail to make a case for himself, HR would determine what action to take, including giving him a warning, demoting or fining him, or dismissing him outright.

HR departments are supposed to provide structure to businesses and keep it running smoothly, such as by recruiting and retaining talent, ensuring productivity and complying with employment laws. Refusing to take action to protect employees’ health would cause them to be less productive and cost the business money, thereby going against the field’s stated objectives.

But, in real life, HR departments do not always meet their lofty goals.

Dr. Ismaniza Ismail, occupational health expert.

Occupational health specialist Dr Ismaniza Ismail said she would not be surprised if many HR departments did not protect workers as they should.

“If you think about it again, the HR (department) serves the boss, right? In the normal setting, that’s how people look at it. But it is ethically wrong, we cannot deny the fact,” she said.

All said, if HR refused to or could not resolve the issue, employees should escalate it further up the chain of command. 

“So in the event HR does not act on it (the complaint), then I think the employee would have no choice but, you know, to bring it to the relevant authorities because there’s only so much an employee can do,” Cheah said.

Protect yourself

So far, Raihana and her colleagues have decided against going up the chain of command. The reason was distrust of HR in keeping their identity secret and fear of retaliation.

“I know what my boss is like. If he knows there’s someone like a whistleblower in his department, just imagine what he’d do,” she said, adding that she and her colleagues were worried he would demote or transfer them out if he found out.

It is illegal for employers or managers to retaliate against any employee who reports a violation or files a complaint against them. However, the experts admitted reality does not always meet expectations.

Workers in an open concept office. — BERNAMA

Rosman, who is head of Group Integrity and Governance at a government-linked company, said the employees’ fears of retaliation are a valid concern.

“Especially if the alleged party or the one committing the offence is a friend of the HR people so, of course, the HR will not want to entertain (the complaint),” he said.

However, all is not lost. Cheah said employees could go outside the system and file a complaint directly with the Department of Occupational Health and Safety, which will then conduct its own investigation. 

At this point, employees should have as much evidence as possible to prove their case, including medical records to show how their health has been affected.

Cheah told Bernama the employees concerned should also collect any evidence of possible retaliation should they need to go to the industrial court for unfair dismissal.

“They would need to have all the evidence recorded, all this evidence of the retaliation that happened after the complaint (was made),” he said.

Other than the obvious, such as a bad appraisal, demotion or transfer, retaliation can take many forms. Cheah said some subtle examples include suddenly changing the job scope into one that is not within one’s area or expertise or setting an impossible goal.

He used the 2006 American movie “Devil Wears Prada” as an example of an impossible expectation – when difficult boss Miranda orders her assistant Andy to get copies of the unpublished manuscript of the latest Harry Potter book for her daughters within 24 hours. 

“I think the most common (way) is to… make it very difficult for the employee to carry out the duties and tasks that they were employed for,” he said.

Rosman agreed, saying this would create a toxic environment for the employee.

They (employers) can psychologically do things to demotivate you, to make you feel helpless and eventually, you decide to leave the company,” he said.

Smoking is prohibited at offices with a centralised air conditioning system. — BERNAMA

Dr Ismaniza, who is also a committee member of the Malaysian Society for Occupational Safety and Health, acknowledged the risk that comes with filing a complaint against one’s employer or boss.

However, she said it is still very important for employees to speak out and stand up for their health and safety. She added the best way for employees to mitigate the risk is by banding together to get their way.

“Somebody has to be the ‘black sheep’ but in this case, we don’t want only one black sheep. You just team up together. Let the boss know you’re not happy with what (he is) doing,” she said.

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