Nigeria: Workplace Sexual Harassment: Is The Employer Immune From Liability?

Last Updated: 13 August 2018
Article by Perchstone & Graeys

The National Industrial Court of Nigeria (NICN) was for the first time, handed the opportunity to declare its strong stance against workplace sexual harassment in the case of Ejike Maduka V Microsoft & Ors.1 The judgement of the court ushered in a new regime of labour law in Nigeria in respect of workplace sexual harassment which not only holds the workplace sexual harasser liable but also the employer vicariously liable in deserving circumstances, for acts of sexual harassment perpetrated against its employee.

EJIKE MADUKA V MICROSOFT & ORS

The Applicant, Mrs. Ejike Maduka was until the termination of her employment, the Enterprise Marketing Manager of the Microsoft Nigeria Limited, the 1st Respondent. Microsoft Nigeria Ltd is the Nigerian subsidiary of Microsoft Corporation, the 2nd Respondent. The Applicant's grievance against the Respondents was that the termination of her employment was traceable to her refusal to succumb to sexual advances from her immediate boss, Mr. Onyeje, the 3rd Respondent, who was the Country Manager and Chief Executive Officer of Microsoft Nigeria Ltd. She therefore instituted her action under the Fundamental Human Right Enforcement Procedure Rules, praying the NICN to declare that the termination of her employment for her refusal to succumb to the sexual advances of Mr Onyeje constituted a flagrant infringement on her right to dignity of person and freedom from discrimination as guaranteed by sections 34 and 42 of the Constitution of Federal Republic of Nigeria, 1999 (as amended) and sections 15 and 19 of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act.

In its reply, Microsoft Corporation prayed the Court to strike its name out of the matter, canvassing the arguments that it is a separate and distinct legal entity from its Nigerian subsidiary, and that it did not directly instruct the termination of the employment of the Applicant. The Court relied on the principle of agency of a principal employer and the subsidiary employer to hold that there is a co-employer status between the 1st and 2nd Respondent, and therefore held the 2nd Respondent answerable for the claims of the Applicant.

The NIC found that the allegations that the 3rd Respondent consistently tickled and touched Mrs. Maduka and some other female workers in the office against their will and in spite of their protests, was proved by the evidence tabled before it. Consequently, the Court declared that the sexual harassment of the Applicant is an infringement on her fundamental right to dignity of human person and freedom from discrimination. The Court held the 1st and 2nd Respondents liable in damages for not taking utmost care to ensure that the Claimant's fundamental right to freedom from discrimination and degrading treatment in the workplace was not violated by the termination of her employment by the 1st Respondent. The Court therefore awarded N13,225,000.00 (Thirteen Million, Two Hundred and Twenty-Five Thousand Naira) against the 1st, 2nd and 3rd Respondents severally.

COMMENTARY

I. THE LAW AGAINST WORKPLACE SEXUAL HARASSMENT

The case brings to the fore an issue in an area of labour law bereft of Nigerian legislation or case law at the date of the Court's judgement in 2013. It is noteworthy that the Labour Act and other allied labour laws in Nigeria do not make specific provisions for workplace sexual harassment. However, the 1999 Constitution confers on the NICN jurisdiction on matters connected with or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment, workplace and industrial relations matters. In a decided case, the NICN endorsed the use of international convention on labour ratified by Nigeria and applied it in the case.2

It is pursuant to the powers conferred on the NICN that the Court applied United Nations Convention on The Elimination of All Forms of Discrimination against Women (CEDAW) and International Labour Organization's Discrimination (Employment and Occupation) Convention 1958 No 111 to determine the justice of the case of the Applicant. The Court particularly relied on Recommendation No 19 of the CEDAW which provides that "it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruiting or promotion, or when it creates a hostile working environment." The Court also relied on a Canadian case where the court held that sexual harassment is a form of sexual discrimination banned by the human rights statutes in all jurisdictions in Canada3, and a Supreme Court of India's judgement where it was held that a right against gender discrimination is a universally recognized basic human right.4 NICN therefore came to conclusion that the termination of the Applicant's employment for her refusal to succumb to the sexual advances and overtures of the 3rd Respondent is a discrimination against the Applicant on the basis of her gender, and a rape on her right to dignity of her human person.

In view of filling the void in the labour statutes in respect of workplace sexual harassment, the NICN has included in its Civil Procedure Rules 2017 the four categories of acts that constitutes workplace sexual harassment within the Nigerian labour milieu. Order 14 Rule 1 (a), (b), (c) and (d) of the NICN Civil Procedure Rules 2017, provides the four categories of acts that may constitute a workplace sexual harassment, namely:

  1. Physical conduct of a sexual nature;
  2. A verbal form of sexual harassment;
  3. A non-verbal form of sexual harassment; and
  4. Quid pro quo harassment (where an owner, employer, supervisor, member of management or co-employee undertakes or attempts to influence or influences the process of employment, promotion, training, discipline, dismissal, salary increments or other benefits of an employee or job applicant in exchange for sexual favour).

The creativity of NICN in making relevant provisions for workplace sexual harassment in its Rules will be highly complementary to existing international labour best practices and ratified international conventions in respect of workplace sexual harassment.

II. VICARIOUS LIABILITY OF EMPLOYERS

It would appear paradoxical that an employer who may not directly partake in an act of workplace sexual harassment may be called upon to bear the liability for the act within its employ. The case under review has laid the foundation of the law that in certain circumstances, the employer may be vicariously liable for workplace sexual harassment.

It was the argument of the 1st and 2nd Defendant in the case under review that it has a policy, (Anti –Harassment & Anti- Discrimination Policy and Complaint Procedure) to address workplace sexual harassment. It was also brought to the attention of the Court that when Microsoft Corporation became aware of the allegations of sexual harassment in its Nigerian company, it launched an investigation on the report in the United States of America. However, there was no evidence put before the Court that the Applicant was invited or interviewed in respect of her allegations when the investigation commenced, neither was there any evidence of the outcome of the investigation commended to the Court. It therefore became apparent that the refusal of Microsoft Corporation to conclude investigations of the alleged case of sexual harassment in its Nigerian subsidiary company made the 1st and 2nd Respondents liable for the acts of the Nigerian CEO. The Court particularly held that by "the inaction and silence of the 1st and 2nd Respondent, they both tolerated and ratified the 3rd respondent's conduct which is against their policy of prohibition and non-tolerance of sexual harassment, gender discrimination and retaliatory action. I hold that they are both in breach of their duty of care and protection to the applicant and are vicariously liable for the acts of sexual harassment carried out by the 3rd respondent within the apparent scope of authority they entrusted to him."5

It is therefore clear that the attitude of NICN to workplace sexual harassment is that where an employer becomes aware of a workplace sexual harassment incidence and takes no administrative decision to investigate and address it, such employer may be liable for breaching its duty of care owed to the employee to protect the employee's fundamental rights.

CONCLUSION

The case of Ejike Maduka v Microsoft & Ors has established the liability of employers and employees alike, for cases of workplace sexual harassment in Nigeria. It is therefore a wakeup call for employers to speedily create policies and put mechanism in place to address cases of sexual harassment in their workplace to prevent being inescapably caught in the web of liability brought about by their refusal to act upon becoming aware of such cases in their employ.

Footnotes

1. Unreported Suit Number NICN/LA/492/2012, Judgement delivered on December 19, 2013.

2. Aero Contractors Co. of Nigeria Limited v. National Association of Aircrafts Pilots and Engineers (NAAPE) & Ors. [2014] 42 NLLR (Pt. 133) 664 NIC.

3. Janzen v. Platy Enterprises Ltd [1989] 1 SCR 1252.

4. Vishaka and Ors. v. State of Rajasthan and Ors. [1997] 6 SCC.

5. Ejike Maduka v Microsoft & Ors (supra).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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