Introduction
Sexual harassment and violence in whatever form cannot be tolerated in a civilised society. The world over, courts are intolerant of perpetrators of violence in the workplace.
UASA obo Zulu v Transnet Pipelines[1] is an infamous South African case of a male employee who used to call a fellow female employee his wife and sexually harassed her. This happened for almost a year and in the process, the female employee would consistently condemn the unwelcome acts. The female employee eventually complained against the male employee after he attempted to have sex with her. In the hearing and at arbitration, the male employee maintained that his actions were part of his culture. His dismissal from employment was upheld.
The example above illustrates the kind of conduct the legislature has sought to seriously curtail in the workplace by coming up with the bill under discussion. The legislature was also aware that sexual harassment and violence may extend to other spheres of an employee’s life that are linked to the workplace.
The provision in the Bill is a very welcome development as it seeks to protect the employees. The provision also aligns our labour laws with international best practices in the field of robustly dealing with sexual harassment.
Under section 6 of the proposed Labour Act, a new subsection 3 that will deal with issues regarding violence and sexual harassment is being proposed. It is this section that will be the subject of discussion hereunder.
Definition of Violence and Sexual Harassment
Section 2 of the Labour Act is being amended to include the definitions of the words as follows:
““gender-based violence and harassment” means violence and harassment directed at persons because of their sex or gender, or affecting persons of a particular sex or gender disproportionately, and includes sexual harassment;
“violence and harassment” in the context of section 6(3) and section 8 refers to a range of unacceptable behaviours and practices, or threats thereof, whether a single occurrence or repeated, that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm, and includes gender-based violence and harassment;”
We note that the wording of this definition is borrowed from the International Labour Organisation as outlined in the Violence and Harassment Convention, 2019 (No. 190). In Zimbabwe, an international convention is not binding until it has been incorporated by an Act of Parliament[2] and by including the provisions of this convention into our law the country is complying with internationally accepted standards on violence in the workplace.
Prohibition of violence and harassment
The Bill prohibits violence in the following terms:
“(3) No person shall directly or indirectly act in a manner that amounts to violence and harassment towards another person at the workplace including any action in the course of, linked with or arising out of work—”[3]
The words highlighted in the provision are worth further discussion. The fact that the prohibited violence can be perpetrated “directly or indirectly” means that the source of the violence can be an employee or an employee working through another person who is a fellow employee or a non-employee. These words may also be interpreted to mean encouraging, inciting, recommending, advising, encouraging, threatening violence.
The words “linked with or arising out of work” are explained in the bill and these are the areas in which violence can occur:
“(a) in the workplace, including public and private spaces where they are a place of work;
(b) in places where the worker is paid, takes a rest break or a meal, or uses sanitary, washing and changing facilities;
(c) during work-related trips, travel, training, events or workplace organised social activities;
(d) through work-related communications, including those enabled by information and communication technologies;
(e) in employer-provided accommodation; and
(f) when commuting to and from work.”
Campbell Scientific Africa Ltd v Simmers and Others 2016 37 ILJ 116 (LAC), illustrates sexual harassment that happens in work-sponsored events. Here a male employee asked a female colleague if she wanted to be with him for the night. This resulted in the dismissal of the employee and subsequent upholding of the dismissal by the Labour Appeal Court of South Africa.
Gaga v Anglo Platinum Ltd and others [2012] 3 BLLR 285 (LAC) highlightsthe fact that the victim was enjoying the sexual harassment does not stop the harasser from being liable.
Consequences of Violence and Sexual Harassment
Criminal Sanction
The first consequence of violence and sexual harassment in the workplace is a criminal sanction. The bill is proposing a penalty in the following terms:
“Any person who contravenes subsection (3) shall be guilty of an offence and liable to a fine not exceeding level twelve or to imprisonment for a period not exceeding 10 years or to both such fine and such imprisonment”.[4]
A person can be arrested for 10 years for violence or sexual harassment in the workplace. This is indeed a sign of how much violence and sexual harassment should not be tolerated in a civilised society.
Dismissal
The bill also prescribes dismissal as the appropriate penalty for anyone who is found to have caused Violence and Sexual Harassment. It says:
“Notwithstanding anything to the contrary in an employment code or the conditions of service for the employee concerned, any employee who is found after due enquiry by the employer to have engaged on a balance of probabilities in any of the acts for which the employee may be charged for an offence under subsection (5) shall be justifiable grounds for dismissal for that employee whether that employee has been prosecuted or not.”
In this respect, even though the words “after due inquiry” are used in the section, this inquiry should always be in the form of a disciplinary hearing. We submit so because, even when one is accused of violence or sexual harassment, they are still entitled to the rules of natural justice. There is no other instrument that provides for these common-law rules other than the code of conduct. It is also the same instrument that ensures that the “balance of probabilities” is correctly assessed before a decision is made. We submit therefore that the wording of this section should not tempt persons to summarily dismiss an employee without following the code of conduct.
Liability of the Employer
Whilst we believe that the measures being taken in the bill are adequate to protect employees against violence, we suggest that a layer of further protection can be provided. The South African stance is perhaps ideal. In terms of South African law, an employer can be held liable for damages if he or she does not act to stop sexual harassment in the workplace. Such was the case in Ntsabo v Real Security CC (2003) 4 ILJ 2341 where the court noted that the company had not taken any action against a supervisor who sexually harassed an employee resulting in the employee finding the situation intolerable and resigned. The court ordered maximum compensation in terms of the South African laws because the employer had not acted to do something about the sexual harassment.
Conclusion
Violence in whatever form cannot be tolerated in a civilised society. The suggested provisions are welcome and introduce an era where female employees who are usually the victims of sexual violence feel safe in the work environment. By incorporating these amendments to the Labour Act the legislature is putting into effect the ILO Convention on Violence and Harassment Convention, 2019 (No. 190). This advances our labour laws to a stage where they comply with international best practices.
[1] UASA obo Zulu v Transnet Pipelines (2008) 29 ILJ 1803.
[2] Section 327 (2) of the Constitution of the Republic of Zimbabwe reads: “An international treaty which has been concluded or executed by the President or under the President’s authority— (a) does not bind Zimbabwe until it has been approved by Parliament; and (b) does not form part of the law of Zimbabwe unless it has been incorporated into the law through an Act of Parliament.
[3] Proposed Section 6 (3) of the Labour Act.
[4] Proposed Section 6(3)(4) of the Labour Act.