Landmark sexual harassment case in Malawi
The woman at the centre of this case had a contract with the Mota-Engil construction company and worked as a time-keeper, maintaining accurate records of the length of time taken to complete particular sections of work. Her immediate superior was Joaquim Carvalho, a non-Malawian, Portugese-speaking man, who also worked for the company under contract as general foreman.
According to the woman, let’s call her ‘A’, her problems with Carvalho began in September 2016 when he ‘proposed to be in a relationship with her’. She refused, and things turned nasty. She told the court about a number of occasions when he touched her inappropriately and exposed himself. As Judge Michael Tembo would put it later, he used his ‘authority to sexually abuse her by touching her private parts forcefully whenever she boarded his motor vehicle.’
In her evidence she said that she reported the problem to the company ‘but nothing changed’. The company still let Carvalho drive with A, and the problem escalated.
As far as A was concerned, Carvalho was only able to continue sexually abusing her because the company breached its duty towards her. It neglected to stop the foreman, failed to protect her from sexual harassment and did not provide her a safe working environment. It was because of this ‘breach of duty’ that she decided to go to court.
She said that the company’s negligence caused her to suffer various damage – injury ‘to her dignity as a woman’, emotional and psychological trauma, fear of working with male colleagues and erosion of her confidence.
Inexplicably, the company denied everything. She had not notified the company of her problem with Carvalho, said the company. Carvalho had not acted as she claimed, and, worst of all, the company argued in the alternative, that what happened between them was ‘consensual’. There had thus been no ‘damage’ suffered by A, said Mota Engil, and the company owed her nothing.
But it turned out that there was evidence that she had complained to the company, using its established ‘chain of command’, but that nothing happened.
Because Carvalho was A’s immediate superior at work, she felt that to refuse to drive with him when he instructed her to do so would risk being found to be insubordinate. She therefore complied under protest. But her protests were ignored.
After one particularly egregious incident in which he took out a knife and tried to rip her trousers apart, she spoke to the site supervisor straight away. But other staff there said she was wasting her time: the company failed to act even though incidents of sexual abuse by Carvalho and another man were ‘rampant’.
Eventually she reported to the overall project supervisor, David Chise, who told her to write a report, but took no immediate action. She had not initially reported to him because she had told her immediate supervisors. Called to give evidence, Chise said that by the time he received A’s written complaint, Carvalho had resigned from his job and flown out of Malawi.
According to Chise, ‘disgraceful and improper behaviour’ such as sexual harassment was expressly prohibited by the company and could result in summary dismissal. Chise said that since Carvalho’s behaviour was not approved by the company and was not connected to his duties as foreman, the company could not be held responsible for his behaviour towards A. Nor could it be said that it had been negligent in relation to its duty as an employer.
‘No physical injury’
Judge Tembo said he agreed with the woman that the company had breached its statutory duty by failing to ensure her safety and welfare. In particular, it failed to put an effective system in place to deal with complaints like this. If it had had an effective system for sexual abuse complaints then Carvalho would have been stopped.
According to the company, however, even if were found that it had failed in its duty, the woman had not shown that she suffered ‘loss’ as a result. There had been no ‘physical injury’ and thus her claim should not be upheld, the company said.
This was an important part of the case, because if the court had agreed that without physical injury there could be no loss and thus no damages’ award, the matter would have ended there. If that had happened, A would not have been the only one to lose: there would be no impetus for companies in Malawi to ensure that they have an effective system to deal with sexual harassment in the workplace.
The judge said he had done his own research on the matter and concluded that a claimant could succeed in a claim of negligence when the injury involved psychological, rather than physical, injury as in this case.
Mota-Engil said A had not ‘proved’ that she suffered psychological injury ‘as a consequence of the repulsive actions’ of Carvalho. But the court held it was more probable than not that she suffered psychological trauma. This injury was ‘reasonably foreseeable’ given that A ‘reported the abuse’ to her work superiors, but ‘for months’ they did not act. They continued to let her ride in the same vehicle as Carvalho and he continued to abuse her.
As she had proved her claim, the court would award her ‘aggravated damages’, given that she was ‘left to suffer for several months’ after reporting the ‘offensive conduct’ to the company. The award would be assessed on an aggravated basis because of the exacerbated distress she suffered through Carvalho’s behaviour that the company allowed to continue. The exact sum of the award is to be assessed by the court registrar.
The case is important for a number of reasons. It sets a precedent under which companies will face aggravated damages if they don’t establish an efficient system to stop workplace sexual harassment.
Further, companies can’t simply claim that the harassment was not authorised and that the company can thus not be held responsible. It also establishes that the target of the harassment may claim successfully even where there is no ‘physical’ injury: this is important since psychological damage and trauma in such a case is much more likely than physical injury.
And it shows how one brave, determined woman can make a difference in the lives of so many others.
* 'A matter of justice', Legalbriefs, 30 March 2021