happiness ChikwanhaRutendo Shamaine Magadzire
Sexual harassment is unwelcome sexual conduct in the workplace which involves making unwelcome sexually determined behaviour whether physical (touching, groping/fondling, kissing), verbal (comments on body structures or comments with a sexual innuendo) or non- verbal (starring, gestures, etc). In the event that one, some or all of these violations have been suffered by an employee in the workplace subsequently resulting in their unfair dismissal , the Labour Act [Chapter 28:01] gives possible legal remedies that can be pursued by the employee.
Section 89 (2) states that an employee who has been unfairly dismissed can seek reinstatement, payment of back pay or damages. This will be clearly explained below.
Section 89 (2)(c)(iii) of the Labour Act states that if an employee has been unfairly dismissed, they can make an application with the Labour court to be reinstated. Reinstatement means the action of giving someone back the position they lost because of a labour violation.
This section of the Labour Act is inline with Article 10 of the ILO Convention on Termination of Employment No.158 of 1982 which promotes fair labour practice and states that if a court finds termination unjustified and not practicable in accordance with the law, an award for reemployment should be awarded as a remedy in favour of the employee unfairly dismissed. With this action the court may instruct the employer to place an employee back in the position that they were had the unfair dismissal not taken place.
This subsequently brings an aggrieved employee to their second available remedy being payment of backpay. Payment of backpay is regulated by Section 89 (2)(c)(i) of the Labour Act. An employee who is unfairly dismissed is entitled to the payment of remuneration for the period of service interrupted.
The court will calculate it from the date an employee (in this case a survivor of sexual violence) was unfairly dismissed to the date of reinstatement. The mischief to this remedy is to bring the wronged employee back to their status quo as if such violation/dismissal had not been done against them.
The employee is entitled to the salary they would have accrued for the period of the unexpired contract. After reinstatement with backpay, it is important to note that when a contract subsequently lapses the employee is not forced to renew such contract as it is solely their contractual discretion.
Lastly, an employee who has been unfairly dismissed can claim for damages in terms of Section 89 (c)(iii). This section is clear in that an award by the court for reinstatement should be accompanied by an order for damages. Damages refer to an amount of money claimed for actual loss suffered by an employee resulting from dismissal or refusal by an employer to reinstate, whichever happens. This remedy places the duty to mitigate the loss and suffering on the employer for the benefit of the employee.
In a decided case (Mandiringa & others v National Social Security Authority HH 98/05) it was said that on ordering for reinstatement, labour officers are duly bound to access damages in a specified sum because an award for such that fails to accommodate damages is a misdirection or an incomplete award.
The assessment of damages differs from that of backpay in that, damages pose a wider concept other than looking at what was due to an employee for the period their contract ought to be serviced yet interrupted by dismissal.
Damages for loss of employment are usually equivalent of the period someone would have taken to secure alternative employment including an assessment of a person’s age, economic environment, effort to secure employment, expert evidence from employment agencies and educational qualifications.
Conclusively, a survivor of sexual harassment in the workplace can only benefit from the above-mentioned remedies if they pursue the strides of legal justice through reporting and claiming via the Labour Court of Zimbabwe
For feedback questions and comments please feel free to email [email protected]. Look out for the next article in this column next week. For a 24hr response to Gender-Based Violence issues, call our toll free number 08080131:hotline0782900900
The public is encouraged to continue observing social distancing, wearing of face masks and constant washing of hands to prevent the spread of the coronavirus.
Online Reporter