Legal first for Zimbabwe as court orders damages for workplace sexual harassment
Few women would have had the staying power of the plaintiff in this case, RM. She has been fighting for many years for redress over the sexual harassment to which she was subjected and, at least in the latest case, has been acting for herself, with no lawyer appearing for her.
In 2002/3 she was employed by the Confederation of Zimbabwe Industries (CZI) and claims that she discovered sexual harassment of female employees there was ‘rampant’. In her case, the ‘sole culprit’ was the CEO, Farai Bwatikona Zizhou, for whom she worked directly, as his personal assistant.
She says that when she reported him, however, CZI’s president ‘was flippant, if not contemptuous’ in response to her complaints.
The new judgment concerns the CEO only, as her case against the CZI is still continuing.
According to RM, the sexual harassment she experienced took place over some nine months, beginning when she was still on probation. It ended in July 2003 when she was fired in circumstances that she claimed amounted to unfair dismissal. She claims that Zizhou engineered her dismissal in retaliation for the fact that she had reported his sexual harassment. In her view, it was attempted revenge on his part and that the ‘charges’ against her were trumped up.
RM said that the sexual harassment took the form of inappropriate touching, unwelcome offensive jokes, invitation by innuendo to an inappropriate sexual relationship. She had received offensive telephone messages from him, had been sent pornography on her computer, and he had attempted to kiss her, by force, resulting in an injury on her thigh caused in the process of her resisting.
One ‘smoking gun’ by way of evidence, quoted in the court’s decision, is an email written to her by Zizhou after midnight in January 2003. He gave a deliberately misleading subject caption to the email, to camouflage the true nature of the letter. The email made clear that RM had given him no encouragement and that Zizhou was frustrated by this.
When she reported the harassment and tried to follow up on her complaint she was ‘told off’.
She said that the CZI president told her that, as a married woman, ‘she should be ashamed to say that she had been sexual harassed.’
Since the company refused to help her, she took the matter to arbitration where the dispute lingered for years. Eventually, in March 2014, the tribunal found she had been unfairly dismissed and that she had been sexual harassed.
That cleared the way for her to approach the high court. The two defendants, the CZI and Zizhou, tried to prevent the case from going ahead, and the matter eventually reached the supreme court to deal with the technical matters raised by them.
Eventually, however, Zizhou was permanently barred from continuing with his defence of the claim because he had missed the deadline to do so. That freed RM to ask for a default judgment against him on liability and quantum, and it is this decision that the high court has now delivered, with the case against CZI still incomplete.
One interesting feature of the judgment is that it does not cite Zimbabwe case authority but relies on decisions from elsewhere. This, coupled with comments by the judge, suggests that the problem of sexual harassment and the award of damages is one that is new to the courts of Zimbabwe, and that RM could be setting a precedent for other women.
Although Zimbabwe’s Labour Act provides for sexual harassment as an unfair labour practice, CZI cannot have had an effective policy against such behaviour in place at the time of RM's experience.
This suggests that the outcome of the CZI part of RM’s claim could be crucial in helping ensure that businesses put a more effective sexual harassment workplace policy in place in future to ensure that they avoid both the bad publicity and any court-ordered payouts by way of compensation, associated with such behaviour.
Judge Joseph Martin Mafusire said that the question before him was not whether an unfair labour practice had been committed against RM – that had been settled by arbitration, confirmed by the supreme court and was not before the high court.
But the fact that sexual harassment was an actionable wrong under the labour law raised the question whether it was also actionable in delict. If so, what kind of amount would be appropriate for damages?
What ‘recognisable injury’ had been caused in such a case? ‘Sexual harassment causes pain. It results in shock. It is a kind of injury to the victim’s person. That injury can lead to loss.’
Anxiety and depression
The emotional shock of such an event could lead to further, ‘recognisable psychiatric conditions’ like anxiety and depression. Judge Mafusire listed a number of other ‘losses’ that a court could consider in establishing whether the target of sexual harassment should be awarded damages.
He said he agreed with the South African constitutional court which had held that ‘sexual harassment is the most heinous misconduct that plagues a workplace. … Not only is it demeaning to the victim, but it undermines their dignity, integrity and self-worth, striking at the root of that person’s being.’
Judge Mafusire also quoted the constitution’s guarantee of human dignity and the right to have that dignity respected.
‘It is axiomatic that sexual harassment, especially at the workplace, strips the victim of his or her dignity. It degrades her. It turns her into an object of sexual gratification. It strips her of her right to personal security (as contemplated in the constitution).
‘A claim for damages for sexual harassment is an attempt to vindicate such of the constitutional and other rights as well that have been frittered away by the defendant.’
He said that in considering a question of this kind, a court should take into account the ways in which the victim had suffered. These included the nature, duration and seriousness of the injury to feelings; the gender of victim and perpetrator; their age difference; the power relations at play, and the prevalence of the misconduct at the place of employment.
Severe post-traumatic stress
In RM’s case, she claimed she suffered psychological damages. A general practitioner and a psychiatrist both submitted reports on her condition explaining that she suffered severe post-traumatic stress disorder as a result of the sexual harassment and her chances of recovery were rated as being very poor, with extensive and ongoing treatment being required.
The reports noted that her personality had changed significantly, and she now had recurrent nightmares. She had been doing a law degree but has had to quit her studies and had lost confidence in herself.
Further, her marriage had broken up, largely because of the change in her personality. And while she had had a job and a steady income, she had had to sell her property to finance her medical and legal bills, and the general upkeep of her family. She could also not find another job, given the poor testimonial from CZI and Zizhou to prospective employers.
Judge Mafusire said that this appeared a textbook case and added, ‘Manifestly, no amount of money seems adequate to compensate her loss.’
In deciding the damages, the court should be aware of its decision on ‘future awards, but at the same time it should not be seen ‘to be paying lip service to values espoused in the constitution on human dignity and integrity. Compensation must be tangible.’
Additional features of the case that had to be taken into account included the fact that the sexual harassment was ‘persistent’; there had never been an apology; at arbitration, Zizhou tried to dismiss his ‘reprehensible conduct’ as ‘mere jokes’. He was ‘callous’. He ‘engineered (RM’s) dismissal’. When an attempt was made to reach and out of court settlement, the person deputed by the employer to negotiate with RM was ‘none other’ than Zizhou himself. Inevitably, commented the court, those attempts were stillborn.
The power balance between RM and Zizhou were ‘skewed’: he was the CEO and she his personal assistant. ‘He had immense power over her.’ Litigation was ‘intentionally stalled’ and it was now almost two decades since the incident. ‘it is only thanks to her tenacity that the case has remained alive’.
The judge said that damages for sexual harassment had no precedent ‘at all’ in Zimbabwe, ‘at least to one’s knowledge’. However, based on ultimately abortive proposals for ‘mutual termination of employment’ made in 2010, he made an order that RM be paid US$180 000 plus legal costs, with interest from the date of judgment. Zizhou wll be allowed to pay the damages ordered by the court in the local currency at the official rate.