It has been reported in the media that the Sexual Harassment (Prevention) Bill, 2016 is being fine-tuned and should soon be on the statute books.
Currently, the only“protections” against workplace harassment are the criminal law or a claim of constructive dismissal where work conditions are so bad that an employee has no alternative but to resign.
Currently, the state of the law on sexual harassment in the workplace is governed by the pronouncements of the High Court in Margaret Wharton v Bank of Nova Scotia, S/Ct Suit No. 438 of 2005.
Wharton, the plaintiff, sued the Bank of Nova Scotia, the defendant, for damages for constructive dismissal, “mental, psychological and physical injury” arising out of the manner in which she was forced to terminate her employment by resigning.
The plaintiff had claimed that she was harassed by the assistant manager of the branch where she was employed on several occasions. In one instance, he attempted to place his hands on her jacket zipper while threatening to pull the said zipper down.
Further, the general manager of the branch “repeatedly used offensive language in the presence of others while discussing work with the plaintiff”.
The assistant manager had also shouted some rather nasty expletives at her in the presence of customers doing business at the bank and, in the presence of those customers, told her that she “did not know what she was doing”.
The final nail in the coffin was hammered home when the general manager repeatedly said to the plaintiff that “the only thing that you are becoming famous for is being a thief.”
The plaintiff sought to resolve the matter by seeking an alternate posting which is an important factor in the mitigation of damages or, in other words, showing the court that you did all that you could in order to lessen the loss which you suffered.
The defendant, in its own wisdom and clearly without any reference to either a lawyer or earlier cases on constructive dismissal, thought that the offer of a lesser post, albeit with no diminution in salary, was a good idea. The plaintiff therefore resigned.
The court was therefore asked to determine whether the behaviour of the defendant’s employees amounted to a breach in the contract of employment and whether the breach was sufficient to substantiate a finding that the plaintiff was constructively dismissed.
Upon analysis of the evidence led on behalf of the parties to the litigation, the court found that the behaviour of the assistant manager amounted to sexual harassment. It also determined such behaviour was “clearly inappropriate and must be deprecated…and was a serious breach of the employment contract.” The court held that employees are deserving of “civility, decency, respect and dignity.”
The question which was earlier posed to the court was answered in the affirmative, in that the behaviour of the manager and his assistant as employees of the defendant, amounted to “a fundamental breach in the plaintiff’s contract of employment.”
As a result, damages flowed from the breach and she was awarded a payment calculated on the basis of Section 45 of the Severance Payments Act, Cap. 355A, namely the minimum she would have been entitled to receive had she been made redundant. She was not awarded damages for psychiatric injury since no identifiable psychiatric illness had been proven.
The question remains as to what should be contained in the legislation if we are going to the trouble of codifying the law. Obviously, there should be an objective definition of sexual harassment. One would hope that the interpretation would not be left to some tribunal comprised largely of middle-aged, middle-income males.
Employers and employees should be able to look at the definition and know where the line is drawn in the sand in the same way that we have a relatively objective definition of domestic violence.
One would also hope that the legislation will include a requirement that every workplace should have a sexual harassment policy with a schedule of guidelines outlining the minimum standard, in the same way that the Employment Rights Act sets out the basic disciplinary procedures.
Such policies should also be required to address the responsibility of the employer where the employee is subjected to harassment by customers, clients or service providers in the course of their duties.
It goes without saying that in this day and age, the phrasing of the Act should be gender neutral.
(Alicia Archer is an attorney-at-law in private practice.)