Sexual harassment is a punishable offence under labour law. The offence can take place between persons of the same sex or of the opposite sex and infringes on the victim’s right to bodily and personal integrity.
In the workplace, most cases of sexual harassment occur between persons who are in authority and their subordinates.
Sexual harassment is defined in the Labour Act as “unwelcome sexually-determined behaviour towards any employee, whether verbal or otherwise, such as making physical contact or advances, sexually-coloured remarks or displaying pornographic materials in the workplace”.
It can also take the form of quid pro quo (“something for something”) harassment where a person who is in authority such as an owner, employer, supervisor or member of management undertakes or attempts to influence the process of recruitment, promotion, training, discipline, transfer, salary increases, retrenchment or any other matter related to employment of an employee or job applicant by rewarding only those who respond to his/her sexual advances, whilst other deserving employees who do not submit themselves to such advances are treated differently.
According to a research survey carried out by a non-governmental organisation, one in every three working women in Zimbabwe from the level of general hand to managing director reported being subjected to some form of sexual harassment at their workplaces, ranging from unwanted sexual attention to sexual coercion.
An employer commits an unfair labour practice if he fails to take the necessary steps to redress an environment of sexual harassment when it has come to his attention or where he reasonably should have foreseen it.
According to Geoffrey Feltoe in his book A Guide to the Zimbabwean Law of Delict, an employer can be vicariously liable for the delicts (wrong acts) of his employees committed within the course of their employment.
Simply put, the perpetrator of sexual harassment is liable in his or her personal capacity but a victim of sexual harassment can also sue the employer for damages in a civil court.
Employers should therefore endeavour to foster an environment that is harassment-free.
A thorough investigation into any allegations of sexual harassment must be held before appropriate action can be taken.
The evaluation of evidence in sexual harassment cases is not always an easy task as many such incidents take place in private, where there are no witnesses. There are cases where frivolous allegations are raised in order to “fix” a person for an unrelated fall-out or when attempts to solicit sexual attention have been snubbed.
Where evidence is hazy, it would be prudent not to pursue the matter. Any false or unsubstantiated allegations may attract expensive civil litigation by the alleged perpetrator whose good name and character are at stake.
Disciplinary hearings should be procedurally and substantively fair otherwise any decision made will be overturned by the courts. In Jacobs vs Eskom (2004) heard before South Africa’s Commission for Conciliation, Mediation and Arbitration (CCMA), the employee was dismissed for sexually harassing a female colleague during a company function.
The CCMA ruled the dismissal to be unfair and ordered reinstatement because the chairperson was evidently biased, and the accused had been denied legal representation at the disciplinary hearing.
When considering the appropriate penalty, aggravating factors include abuse of authority, repetition of the offence by the same person or where there has been physical contact.
E-mails, text messages or pictures with sexually-suggestive undertones, especially when the recipient has indicated such is not welcome, constitutes sexual harassment and will be hard evidence in any tribunal.
Severe cases of harassment justify dismissal as a penalty even for the first offence. However, in less severe cases, a warning and counselling suffice.
Most sexual harassment incidents occur at social gatherings organised by companies.
There is a misguided belief that any misconduct during such occasions is not liable to disciplinary action by the employer.
In the 2001 case of Mudzingwa versus One-Stop Co-op, the Supreme Court rejected such reasoning and upheld the dismissal of a male employee who, while under the influence of alcohol at an after-hours Christmas party, had harassed two of his female workmates.
An office affair between two consenting adults does not equate to sexual harassment.
However, it becomes so where a person in authority victimises or attempts to dismiss a junior employee after an affair has turned sour.
Also, where an affair has ended but one of the parties persists in making advances, such actions are unwelcome and may amount to sexual harassment.
Most victims of sexual harassment are afraid of reporting such incidents for fear of reprisals or the social stigma associated with it.
Late last year, the CEO of a well-known parastatal is alleged to have ordered that an impregnated student intern and others who had complained of sexual harassment be fired, labelling the women “prostitutes” and their complaints “lies”.
Perhaps it is high time an appropriate statutory instrument governing the handling of sexual harassment cases at workplaces is enacted.
Isaac Mazanhi is a labour expert