The Penalties of Sexual Harassment in Zimbabwe

The Constitutional Court of South Africa in McGregor v Public Health and Social Development Sectoral Bargaining Council & Others [2021] ZACC 14 para 1 noted that:

“Sexual harassment1 is the most heinous misconduct that plagues a workplace.” Although prohibited under the labour laws of this country, it persists. Its persistence and prevalence “pose a barrier to the achievement of substantive equality in the workplace and is inimical to the constitutional dream of a society founded on the values of human dignity, the achievement of equality and the advancement of human rights and freedoms…and non-sexism”. 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. Writing in 1989, in its first reported case of sexual harassment, the erstwhile Industrial Court, sounding the alarm that sexual harassment cannot be tolerated, highlighted that “[u]nwanted sexual advances in the employment sphere are not a rare occurrence” and it is “by no means uncommon”. Unfortunately, that truth rings as loudly today as it did then. The only difference between now and then is that today we hold in our hands a Constitution that equips us with the tools needed to protect the rights that are violated when sexual harassment occurs. Yet, what this means is that for as long as sexual harassment persists, so the Constitution becomes an eidolon, and its promises of equality and dignity, equally illusive.

Section 8 (h) of the Labour Act [Chapter 28:01] prohibits sexual harassment, and defines sexual harassment as an unfair labour practice. Owing to its seriousness, an employer can decide on what penalty to impose if it finds that there has been a breach of its code of conduct, and that there has been harassment of a sexual nature.

In Celsys Ltd v Ndeleziwa 2015 (20 ZLR 62 (S) 65F it was held that:

‘The law is settled that in circumstances where an employer takes a serious view of an employee’s conduct, it has a clear discretion as to what penalty to impose after finding such employee guilty of the misconduct in question.’

The penalties for sexual harassment in Zimbabwe are:

1. (a) Cessation of the unfair labour practice.
2. (b) Compensation
3. (c) Criminal Sanction

In a recent decision, the High Court set out guidelines for the assessment of compensation for sexual harassment in batha v Zizhou & Another HH 675-21 as follows:

1. (a) The nature, extent, duration and seriousness or intensity of the injury to feelings
2. (b) The subjective circumstances and the gender of the victim and of the perpetrator
3. (c) The power dynamics or power relations and social-economic imbalances between the victim and the perpetrator
4. (d) The age difference between the victim and the perpetrator
5. (e) The pattern of behaviour or conduct of the perpetrator before or after the wrongful act
6. (f) The prevalence of such misconduct and the general conditions of employment
7. (g) The degree of the deprivation of the amenities of life as a result of the injury suffered.