Need to stamp out blatant workplace sexual harassment
26 Jun 2018
A woman security guard working in a Nairobi shopping mall has been awarded damages after the bosses told her colleagues that she had been caught on tape, ‘having sex at work, with a stranger’, but later retracted saying they made a mistake. In her A Matter of Justice column on the Legalbrief site, Carmel Rickard urges local women’s organisations to ensure that the company immediately draws up a sexual harassment policy and train all its staff in how it works.
This must be one of the most egregious examples I have ever read of an employer mistreating a woman via sexual harassment. Given the other humiliations to which she was subjected, I was glad that the Kenyan court did not name her, but instead used the initials JWN.
She worked as a ‘guardette’ at a Nairobi shopping mall, earning Kshs 472 daily, or about R65 a day, starting from late March 2015. Six months and one week later, she was out. Yet she had done absolutely nothing wrong. On the contrary, she had been publicly humiliated by the employer who suggested she had been found, on video, having sex with a strange man at the mall, during working hours. Later, the employer admitted that this was not correct.
But the harm had been done. Can you imagine being that woman, and facing the eyes of colleagues, not to mention her husband, all of whom had the employer’s claims in mind?
As if this was not bad enough, the employers took their unthinking cruelty even further: she was let go. Thanks to her employer, Securex Agencies, she had lost both her good name and her job.
The spotlight fell on JWN’s situation earlier this month with a decision by judge Byram Ongaya in the Employment and Labour Relations Court in Nairobi.
The court heard that early in August 2015 ‘allegations of improper conduct’ were reported against her. The company investigated, though they did not tell her at the time. These investigations ultimately proved that the claims against her were ‘baseless’.
The first she knew about it was on 5 August when a routine parade was called by the company supervisor at the mall. About 39 guards attended, among them JWN herself. The day supervisor addressed the group and ‘announced’ that ‘there was a female guard who had been captured on CCTV footage having sex with a stranger’.
By doing so, that woman had brought the company into disrepute, the supervisor said. The ‘culprit’ was not named, but she would be taken to the company’s office by 10am that morning ‘and would be summarily dismissed’.
This caused considerable anxiety among the guards, especially after the supervisor said that ‘whoever would be picked will be the culprit’ and that the ‘culprit’ was a person of ‘loose morals’.
JWN went back to work as usual, but during the morning a new guard was brought in to relieve her, and JWN was asked to report to the office. A car had been specially sent to pick her up and take her to the office. As she was preparing to leave, one of the company managers at the mall told her not to leave, but to work in an area normally patrolled by men only.
Late that afternoon, three company officials called her aside and asked if she was aware of the ‘sexual relations affair’ that had been captured on CCTV. She said she wanted to see the footage recording the ‘alleged sexual escapade’ – but, faced with her demands, the officials ‘went to the back room recording devices’ and then left, without a further word to her.
The next day, the supervisor ‘mentioned that (JWN) had been thought to be the culprit in the alleged sexual escapade’ and further announced at the parade that the allegations were untrue. All of this was done publicly in front of the 30 guards.
JWN, by now seriously distressed, began to sob, and told the supervisors that they ought to verify information before passing it on to third parties. Though she worked the rest of the day, she had the next two days off via already granted permission.
But the allegations had spread: when she came back to work she was called and told that the property manager of the mall did not want her to work there any more. The next day she was ‘summoned’ to the head office where the zonal manager ‘apologized for the public communication about (her) and the alleged sexual escapade’. Told she would be redeployed, she changed out of her uniform and headed home to await instructions.
When she called the office however the manager told her ‘there was no opening for redeployment’. After she decided to go to court her husband visited the head office three times ‘inquiring about the veracity of the allegations’ and the fate of her employment.
A witness from the company confirmed that the internal inquiry showed JWN was innocent, and she was informed of this. He said she had not arrived at work after that, and that a letter had been sent to call her to a disciplinary inquiry. But the letter could not be found and the court concluded there was no proof it had been received.
JWN’s version was consistent, coherent and credible, and failure to recall her for deployment amounted to unfair, constructive termination, said the judge. For this she was awarded six months’ salary, and an additional one month in lieu of notice.
By making false claims against her in public the company acted in a way that was dehumanising, infringed her rights to dignity and amounted to sexual harassment.
The supervisor’s public humiliation ‘seriously and adversely’ affected her, and this was followed by ‘unfair constructive loss of employment’ as well as problems between her and her husband.
The court considered her humiliation, hurt feelings, loss of self-respect, loss of dignity, self-esteem and confidence and her subsequent vulnerability at work and in the family, and awarded her Kshs 1m.
In all, JWN’s financial payment amounts to Kshs 1 105 000 (roughly R150 000) plus interest and legal costs – hardly a great windfall if you consider that she was left without a job, her good name in question, and with ‘anxiety’ between herself and her husband over the claims against her.
I can only hope that the strong women’s legal lobby in Kenya will take up this issue and ensure that the company – which employs a number of ‘guardettes’ – formulates a sexual harassment policy as soon as possible, with paid time for all the staff to be trained in what it means and the rights and duties it gives them.
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