VIOLENCE AND HARASSMENT IN THE WORKPLACE

The Labour Act, 11 of 2007, is currently limited to sexual harassment, but the Ministry of Labour, Industrial Relations and Employment-Creation (MLIREC) is busy with amendments to the Act which will include violence and harassment in the workplace. According to a 2019 Rapid Assessment Report on violence and harassment in the world of work in Namibia by the International Labour Organisation (ILO) through the MLIREC, the prevalence of violence and harassment in the world of work is high, negatively affects a large part of Namibia’s workforce, and needs to be addressed as a matter of urgency. Cases of violence and harassment in the world of work remain largely unreported, unresolved and unpunished because of a number of reasons, amongst which:

The Namibian Labour Act is not explicit and comprehensive with regard to violence and harassment in the world of work;

Unclear and inefficient reporting structures and procedures;

Absence of comprehensive workplace policies and reporting structures preventing violence and harassment. Workplace policies not enforced or encouraged;

With different cultures meeting at the workplace, it is not always clear to people what is and what is not acceptable;

There seems to be a general attitude of shifting blame to the female victims in cases of sexual harassment, and victims may experience a misplaced sense of shame;

 Victims fear losing their jobs if they report violence and/or harassment;

Victims fear not being believed, and being unable to prove cases of harassment;

Victims fear retaliation or victimisation;

 Laws and policies offering limited protection for whistle-blowers and witnesses; and

 General acceptance of power inequalities and belief that things cannot be changed or challenged within this context.

Be that as it may, here is case law dealing with the issue of harassment as covered in the Labour Act. 

Life Office of Namibia Ltd (Namlife) v Joel Amakali (LCA 78/2013) [2014] NALCMD 34 (8 August 2014) – sexual harassment may lead to dismissal 

The first respondent (employee) was charged on two counts of sexual harassment of two female employees, and one count of using foul and abusive language towards another female colleague.  The charges stemmed from an end-of-year office function held at Midgard, and concerned offences which happened there and on the way back to Windhoek on a bus. He was found guilty in an internal disciplinary inquiry.  In the finding on sanction, it was pointed out to the first respondent that in terms of clause 17 of the appellant’s disciplinary code, management may impose a stricter or more lenient measure than that proposed by the chairperson of the disciplinary inquiry, whose sanction was that the first respondent be suspended without pay for 30 days, and two final written warnings valid for 12 months.  The first respondent was also informed that he had the opportunity to appeal against the sanction or findings of the disciplinary inquiry.  

The Chief Executive Officer (“CEO”) of the appellant (employer) thereafter gave the first respondent notice under clause 17 of the disciplinary code that he intended to impose a more severe sanction in the form of dismissal by virtue of the fact that the recommended sanction for sexual harassment under the appellant’s Disciplinary Code is dismissal. The CEO accordingly gave the first respondent notice of his intention to impose such a sanction, and afforded him the opportunity to make written representations on the issue.  The first respondent made use of that opportunity, and addressed the CEO on sanction and profusely apologised for what had occurred.  The first respondent in fact stated that the “finding of the chairman was reasonable”, and stated “I am very, very sorry for what happened that day”.  He further stated that it was not his intention to offend anyone, and apologised to those affected for his conduct.  He further stated that “things like this will never happen again in future”, and requested forgiveness.  

The first respondent did not appeal against the findings of guilt. Despite his plea and his apologies, the appellant’s CEO decided, in view of the seriousness of the charges, to dismiss him. The first respondent referred a dispute concerning his dismissal to the Office of the Labour Commissioner.  The matter proceeded to arbitration.  In the award, the arbitrator found in favour of the first respondent.  He found that his dismissal was both procedurally and substantively unfair, and for no valid reason.  The arbitrator reinstated the first respondent to his position with effect from 1 November 2013, and directed that the appellant pays the amount of N$102 000 representing a large portion of his salary from the date of dismissal to reinstatement.  The appellant (employer) appealed against that award. 

Having considered the merits of the case on the record, the High Court found that:

Clause 17 of the appellant’s disciplinary code on the contrary expressly authorised management to impose stricter or more lenient sanctions than those recommended by a chairperson of an inquiry.  The appellant’s disciplinary code understandably viewed sexual harassment in a very serious light. It was an offence for which the recommended sanction would be a dismissal. After pointing this out, the CEO then proceeded to afford the first respondent the opportunity to address him upon the issue of increasing the sanction, and the first respondent made use of that opportunity and sought clemency.  A sanction of dismissal was, however, imposed.  

There was nothing procedurally unfair about this sequence of events. 

Sexual harassment is after all a serious matter. The legislature has provided for sexual harassment in the workplace in Chapter 2 of the Labour Act, where special remedies are also provided for discrimination in an employment setting. This is a clear indication of the seriousness with which sexual harassment at the workplace is viewed by the legislature, and rightly so.  Being subjected to unwanted and unwarranted conduct of a sexual nature not only creates a barrier to equality in employment, as is stressed in section 2 of the Act, but it also violates an employee’s constitutional right to dignity and of the person.

The seriousness of sexual harassment in employment is reinforced by the fact that the failure on the part of an employer to prevent it may even attract delictual liability. 

It would follow that the arbitrator’s findings in respect of substantive fairness in his award were entirely unsupported by the evidence before him, and are emphatically excluded by a proper evaluation of that evidence and the probabilities, to such an extent that the findings are of such a nature that no reasonable arbitrator could have made them. They are so vitiated by a lack of reason that they are tantamount to no findings at all.  

 The arbitrator’s finding with reference to procedural unfairness is a question of law which, as demonstrated, was also entirely flawed and also could not stand.

As a result, the appeal against the arbitrator’s award succeeded, and the first respondent’s dismissal was confirmed. The award in favour of the first respondent was set aside.  No order as to costs was made. 

In respect of the finding that being subjected to unwanted and unwarranted conduct of a sexual nature  (and other forms of violence and harassment) violates an employee’s constitutional right to dignity and of the person, reference is made to what the Supreme Court stated in Ex parte: Attorney-General In Re: Corporal Punishment by Organs of State (SA 14 of 1990) [1991] NASC 2 (05 April 1991) when dealing with the constitutionality of corporal punishment in light of Article 8 – right to dignity:

‘…the one major and basic consideration in arriving at a decision involves an enquiry into the generally- held norms, approaches, moral standards, aspirations and a host of other established beliefs of the people of Namibia. 

In other words, the decision which this Court will have to make in the present case is based on a value judgement, which cannot primarily be determined by legal rules and precedents, as helpful as they may be, but must take full cognisance of the social conditions, experiences and perceptions of the people of this country. This is all the more so as with the advent and emergence of an independent sovereign Namibia, freed from the social values, ideologies, perceptions and political and general beliefs held by the former colonial power, which imposed them on the Namibian people, the Namibian people are now in the position to determine their own values free from such imposed foreign values by its former colonial rulers.

 Added to this is the fact that in the case of Namibia, the former colonial rulers, namely the Government of the Republic of South Africa, during their administration of our country, embraced certain ideologies, values and social conventions which were totally unacceptable to the Namibian people, and indeed to the rest of the world. It is, therefore, inevitable that on independence, these ideologies, values and conventions would be discarded by the people and the Government of a free and independent Namibia, in light of their experiences under colonial rule.

 These experiences generally, but in particular with regards to the infliction of punishment by judicial and quasi-judicial organs in accordance with South African legislation introduced into the country during the colonial rule, and even more so by the arbitrary extra-judicial infliction of corporal injuries as a result of physical treatment meted out by the officials of the ruling administrative power and which were in many cases of an extreme nature, such as torture, inhuman and excessive beatings, left an indelible impression on the people of Namibia. It is not surprising that a deep revulsion in respect of such treatment, including corporal punishment, has developed, which ultimately became articulated in the Bill of Fundamental Human Rights enshrined in the Constitution, and in particular in Article 8 thereof, which protects absolutely the dignity of every person, even in the enforcement of a penalty legally imposed, and further absolutely prohibits torture or cruel, inhuman or degrading treatment or punishment.’

Furthermore, 

‘The Namibian Constitution seeks to articulate the aspirations and values “of the new Namibian nation following upon independence.  It expresses the commitment of the Namibian people to the creation of a democratic society based on respect for human dignity, protection of liberty and the rule of law. Practices and values which are inconsistent with, or which might subvert this commitment, are vigorously rejected.

For this reason, colonialism as well as “the practice and ideology of apartheid from which the majority of the people of Namibia have suffered for so long”, are firmly repudiated.

Article 8 of the Constitution must, therefore, be read not in isolation, but within the context of a fundamental humanistic constitutional philosophy introduced in the preamble to and woven into the manifold structures of the Constitution.’

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