Set aside by sjambok: labour law onviolence and harassment in the workplace

Fedden Mainga

In my preceding opinion piece (volume 27), I addressed the constitutional violations of the practical joke involving some employees at Rundu service station who were beaten for loans.

In the employment context, this ‘joke’ brought to the fore some worrisome realities of the state of labour laws because the Labour Act 11 of 2007 only provides for sexual harassment. Even though the Ministry of Labour is reportedly busy with amendments that will include violence and harassment in the workplace, the current Labour Act does not provide for incidents like the one in question. According to Ohms Kayama, an LLM (Labour Law) Candidate, Namibia ratified the ILO Convention 190 which provides for the Elimination of Violence & Harassment at Work. The actions of the employer/employees in question fall into the category of violence and harassment of the said convention.

According to a 2019 Rapid Assessment Report on violence and harassment in the world of work in Namibia by the ILO through the MLIREC, the prevalence of violence and harassment in the world of work was high, negatively affected a large part of Namibia’s workforce, and needed to be addressed as a matter of urgency. Cases of violence and harassment in the world of work remain largely unreported, unresolved, and unpunished because of a number of reasons, amongst which:

• The Labour Act is not explicit and comprehensive with regard to violence and harassment in the world of work;

• Unclear and inefficient reporting structures and procedures;

• Absence of comprehensive workplace policies and reporting structures preventing violence and harassment;

• With different cultures meeting at the workplace, it is not always clear to people what is and what is not acceptable;

• There seems to be a general attitude of shifting blame to the female victims in cases of sexual harassment, and victims may experience a misplaced sense of shame;

• Victims fear of losing their job if they report violence and/or harassment;

• Victims fear of not being believed and being unable to prove cases of harassment;

• Victims fear retaliation or victimization;

• Laws and policies offering limited protection for whistle-blowers and witnesses; and

• General acceptance of power inequalities and belief that things cannot be changed or challenged within this context.

The report defined physical abuse as any intentional (non-accidental) act causing physical harm, injury, or trauma to another person by way of bodily contact. Physical abuse may involve more than one abuser, and more than one victim. Physical abuse can vary from a single slap in the face to the pulling of a person by the hair, to forcing a person to do physical work that they are unable to do because of illness or a handicap, to the chaining of a person to a desk, to a full physical assault or rape. Physical violence or harassment in the world of work is always unacceptable. The type of violence and/or harassment in the world of work is also defined by the relationship between the perpetrator and the victim: Violence or harassment from a person in a superior position (manager, supervisor) towards a person in a lower rank is often perpetuated because of the unequal power relation and dependency position of the victim.

In respect of sexual harassment in the workplace, the Labour Court stated the following in Life Office of Namibia Ltd (Namlife) v Joel Amakali (LCA 78/2013) [2014] NALCMD 34 (8 August 2014):

‘Being subjected to unwanted and unwarranted conduct of a sexual nature not only creates a barrier to equality in employment as is stressed in s2 of the Act, but it also violates an employee’s constitutional right to dignity and of the person.

The seriousness of sexual harassment in employment is reinforced by the fact that the failure on the part of an employer to prevent it may even attract delictual liability (Media 24 Ltd v Grobler [2005] 7 BLLR 649 (SCA) at par 65-76).’

The same can be said about physical abuse in the workplace. What makes matters worse, in this case, is that the employees seemed to be complacent by claiming that it was a game they always played. It could not have been a game, period. Staff members can take loans from their employers under the auspices of the Labour Act but certainly not for a sjambok. Section 12 requires any deduction from an employee’s remuneration to be agreed upon in writing on how and when such loans would be taken and repaid. In the absence of a loan advanced in terms of section 12 of the Labour Act, the loans so advanced should have been advanced in terms of a gentlemen’s agreement or in terms of the Microlending Act, 7 of 2018. This Act regulates microlending businesses in Namibia, and one of the central requirements is registration with the Namibia Financial Regulatory Authority (NAMFISA) and observance of consumer protection. All these laws were set aside by a sjambok.

I generally bemoan the vulnerability of our people to all kinds of exploitations and dangers, by fellow humans (disproportional shortlisting of people for one or few posts, for example) or mother nature itself (for example the efunja that disturbs school-going kids in the north annually; the story of a baboon that killed a baby and injured another child in Windhoek; the shack fires of DRC in Swakopmund, to mention but a few).

One thing is common, the most vulnerable of our communities are at risk of exploitation and other dangers and they cannot afford to get legal assistance to assert possible violations of their rights.

Meanwhile, it is business as usual in the upper classes of society and businesses. It is no secret that Namibia is regarded as one of the most unequal societies in the world. I submit this is the starting point in addressing issues of exploitation that persistently manifest themselves across the country. This should be followed by amending existing laws or enacting new ones that speak to our realities.

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