IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR
BEFORE HIS LORSHIP THE HONOURABLE JUSTICE E. N. AGBAKOBA
DATED: 6TH December, 2016 SUIT NO: NICN/ /CA/03/2016
BETWEEN
STELLA AYAM ODEY CLAIMANT
AND
- FERDINAND DAAPAH DEFENDANTS
- CUSO INTERNATIONAL
REPRESENTATION
- UDOGADI for the claimant
VICTORIA ESSIEN for the defendant
JUDGEMENT
The Claimant instituted this action via a Complaint with the accompanying frontloaded documents filed on 3rd May, 2016 against the defendants for the following reliefs:
- A Declaration that the termination of the claimant’s employment with the 2nd defendant is contrary to the terms stipulated in the 2nd defendant’s Condition of Service.
- A Declaration that the victimization, sexual harassment and subsequent termination of the claimant’s employment because she turned down the sexual advances and overtures of the 1st defendant is malicious, unlawful and unconstitutional.
- Exemplary of aggravated damages of #700,000,000.00 (Seven Hundred Million Naira only) against the defendants.
- Special damages of #16,862,511.00 (Sixteen Million, Eight Hundred and Sixty-Two Thousand, Five Hundred and Eleven Naira only) representing emoluments due to her under the contract of employment.
The claimant’s case is that Claimant was formally engaged by the 2nd defendant as Project Manager Entrepreneurship and Gender Equality on 15th January, 2015 of which they executed the Fixed-term Employment Agreement on 5th February, 2015. The terms and condition of service regulating the claimant’s employment is as contained in the Fixed-term Agreement letter dated 19th December, 2014 and the 2nd defendant’s Overseas Staff Hand Book: Cuso International Overseas Staff Hand Book.
Claimant averred that at all material times, she carried out her job diligently and the 2nd defendant had no reason whatsoever to complain about her performance on the job, never at any point queried, warned or complained of her performance. And that it was because of her pedigree and experience working in several international non-governmental organizations, that the 2nd defendant merged two positions with different job descriptions into one, viz: Project Manager Entrepreneurship and Project Manager Gender Equality which she held diligently.
She stated that as at the time she joined the 2nd defendant’s organization, she was a widow with 4 children and unmarried, and at every single opportunity, the 1st defendant made several sexual advances towards her, she turned him down despite his persistent overtures. That she respectfully and emphatically told the 1st defendant that she was not interested in him as she was engaged and plans were in top gear for her wedding which was slated for 25th July, 2015.
Claimant averred that to her surprise, four (4) days after she handed her wedding invitation to the 1st defendant, she was called into his office and asked to resign. That the 1st defendant asked her to write that she is getting married and relocating to Abuja which she refused to do. However, that on 10th July, 2015, precisely 14 days before her scheduled wedding, the 1st defendant terminated her appointment and that on 12th August, 2015, she sent a letter to the Senior Director of the 2nd defendant requesting that she be formally informed of the reason for her termination.
The Claimant stated that her termination from the 2nd defendant’s employ was malicious, mal-fide, and contrary to the terms stipulated in the condition of service. Furthermore, that her appointment being for a fixed-term of four (4) years, the action of the defendants had caused her to loose what she would have earned.
1ST AND 2ND DEFENDANTS’ STATEMENT OF DEFENCE was dated and filed on 12th February, 2016.
The defendants averred that claimant was offered appointment as Project Manager, Entrepreneurship and Gender Equality on 15th January, 2015, however, that her appointment was yet to be confirmed. That claimant’s appointment was terminated on 10th July, 2015, and she signed and collected her terminal benefits in the sum of #699,709.54K (Six Hundred and Ninety Nine Thousand, Seven Hundred and Nine Naira, Fifty Forty Kobo only).
Furthermore, that the position of Project Manager, Entrepreneurship and Gender Equality has been scrapped in the 2nd defendant’s organization. Again, that the Gender Equality Component of the said position has been outsourced to a consultant while the Entrepreneurship component has been merged with Valve Chain component of the project.
Denying paragraph 2 of the Statement of Facts, defendants stated that the claimant was failed to carry out her duties diligently .And that the claimant is not entitled to any of the reliefs sought for, the same being speculative and an abuse of process of court and should be dismissed with substantial cost against the claimant.
At the trial the claimant testified as CW, adopted her written statement on oath, which was marked Exhibit C1, and proceeded to tender 10 other exhibits.
Under cross examination CW, testified that she was engaged in January2015 and terminated on the 10th July 2015. And that a week after the she started work the 1st defendant started making advances, saying her voice arrests him, slapping her buttocks and embracing her against her will and consent. She also testified that she told him she could not date him, that she was a widow with four children hoping to remarry. He, she also stated would point out other staff who were having affairs saying that was what he wanted. In response to the question, whether she reported the incident She further testified that she did not report to any one as the person she was answerable to was the one harassing her and the other Senior Director (2nd signatory) was also a subordinate person on the 1st defendant’s team and that the 1st defendant was the team leader.
She went on to testify that when she presented her wedding invitation, the 1st defendant asked her why she was getting married and four days later he told her to resign to resign and state it was because she was getting married and relocating to Abuja. The claimant testified that because she refused she was given a letter of termination. A demanding to know why she was terminated she wrote Exhibit C11,
The defendants called one witness, O. J. Olowosusi, the Finance and Administration Manager of the 2nd defendant, who testified as DW adopted his written statement on oath which and went on to tender 5 other exhibits. Under cross examination he testified that when the matter was instituted the 1st defendant was still in the employ of the 2nd defendant but he replied that he did not know to the question as to whether the 1st defendant was still in their employ when they briefed their counsel, then later modified his reply to “I believe so”. DW further identified Exhibit D2 the claimants termination letter and testified that the 1st signature therein was the 1st defendant while the 2nd signature was that of the Senior Director Kevin Brown. He went on to testify that whereas the 1st defendant signed D2, the signature of the 2nd signatory was scanned on from their head office; electronically generated.
In response to the question whether the 2nd defendant ever investigated the claimants allegations against the 1st defendant DW replied “It was handled by the Senior Director West Africa”.
The cross examination continued thus
SANI : So there was actually an investigation by the Senior Director West Africa
DW : I think so
DW also testified that the 1st defendant was no longer in their employ thathe had been effctedd by restructuring, that he had not heard the result of the investigation into the claimants allegation against the 1st defendants. And that they had in fact advertised for the claimants position.
At the close of trial parties were directed to file their final written addresses in line with the rules of this court.
The FINAL WRITTEN ADDRESS OF THE DEFENANT was dated and filed on 30th June, 2016. Wherein the defendant raised the following six (6) issues
ISSUES
- Whether the name of the 1st defendant being an agent of a known and disclosed principal is liable to be struck out.
- Whether the 2nd defendant was entitled to terminate the employment of the claimant within the provisions of the contract of employment.
- Whether the termination of the claimant’s employment by the 2nd defendant in this case was unlawful and contrary to the terms of the contract of employment.
- Whether the claimant having received and collected her terminal benefits is deemed to have acquiesced to the termination of her employment.
- Whether the claimant is entitled to the reliefs claimed in this case having received her terminal benefits.
ON ISSUE 1
Whether the name of the 1st defendant being an agent of a known and disclosed principal is liable to be struck out.
Learned Counsel Victor Essien Esq. submitted that the claimant was not an employee of the 1st defendant rather the claimant and the 1st defendant were both agents of the 2nd defendant, therefore, the proper person to be sued is the principal. UBN LTD. v. EDET (1993) 4 NWLR (PT. 287) 288 RATIO 6; FIRST BANK OF NIGERIA PLC v. EXCEL PLASTICE INDUSTRY LIMITED (2003) 13 NWLR (PT. 837) 412 @ 459, PARAS. E-F (2003) FWLR (PT. 160) 1624.
ON ISSUES 2 and 3
Whether the 2nd defendant was entitled to terminate the employment of the claimant within the provisions of the contract of employment.
Whether the termination of the claimant’s employment by the 2nd defendant in this case was unlawful and contrary to the terms of the contract of employment.
Defendants Counsel submitted that the law is settled as held in NITEL PLC v. AKWA (2006) 2 NWLR (PT. 964) 391 RATIO 1, that an “employee who complains of wrongful termination of employment by his employer has the onus to prove the wrongful termination of the said employment…..” ANGEL SPINNING & DYEING LTD. v. AJAH (2000) 13 NWLR (PT. 685) 532.He argued that the position of the law on contracts of employment outside employments with statutory flavour is well settled and that the claimant’s employment is not one with statutory flavour. AFRIBANK (NIG.) PLC v. OSISANYA (2000) 1 NWLR (PT. 642) 596 @ 616, PARA. G; MR. SULE OGBAJE v. NIGERIA AIRSPACE MANAGEMENT AGENCY (2013) LPELR-19958 (CA), per Iyizoba, JCA (P. 24, PARAS. C-G)
Counsel to the Defendant submitted that the defendant exercised its rights under the terms of the contract to terminate the employment during the 6 months probationary period of the claimant’s contract as provided by the terms of the contract. SHENA SECURITY v. AFROPAK (NIG.) LTD. & ORS. (2008) 1 NSCR (VOL. 2) 184 RATIO 5. It is defence counsel’s contention that at the time the claimant’s employment was terminated, the claimant had not completed her probationary period and the claimant was not a confirmed staff of the 2nd defendant. IHEZUKWU v. UNIVERSITY OF JOS (1990) 4 NWLR (PT. 146) 598 RATIOS 3 & 6.
Defendant Counsel submitted that an employee who chooses not to avail herself of her rights under the regulations, policy and terms of employment is deemed to have acquiesced, waived or neglected her rights, as Equity aids the vigilant and not the indolent. MR. SULE OGBAJE v. NIGERIA AIRSPACE MANAGEMENT AGENCY (2013) LPELR-19958 (CA). He submitted that the position of the law as to the damages recoverable by an employee whose employment was wrongfully terminated under an ordinary contract of employment as in the instant case, has been established in the case of CHUKWUMAH v. SPDC (1993) 4 NWLR (PT. 289) 524 RATIO 10; GABRIEL ATIVIE v. KABEL METAL NIG. LTD. (2008) 10 NWLR (PT. 1095) 399; (2008) 9 NSCQR (VOL. 1) 42 RATIO 1 @ P. 55, PARA. C.
Defence Counsel submitted that the law is that in an action for breach of contract of employment, the claimant, where he succeeds, is not entitled to any award for general or specific damages. All that he is entitled to are his salary in lieu of notice over the period of notice or salary in lieu thereof and no more. GABRIEL ATIVIE v. KABEL METAL NIG. LTD. (supra), per Onnoghen, JSC @ ratio 5, P. 66, PARAS. A-B. He stated that the law as to the remedy for wrongful termination of employment in ordinary contract of employment has been established in AFRIBANK (NIG.) PLC. V. OSISANYA (supra) 616 – 617, PARAS. G-D.
ON ISSUES 4 and 5
Whether the claimant having received and collected her terminal benefits is deemed to have acquiesced to the termination of her employment.
Whether the claimant is entitled to the reliefs claimed in this case having received her terminal benefits.
Counsel to the defendants argued that the evidence in this case particularly Exhibits D31-10 clearly show that the claimant duly received her terminal benefits upon the termination of her contract the act of employment. GUINESS (NIG.) LTD. v. AGOMA (1992) 7 NWLR (PT. 256) 728 RATIO 5; MOBIL PRODUCING NIG. UNLTD. V. ASUAH (2002) FWLR (PT. 107) 1196 @ 1215, 1224; (2001) 16 NWLR (PT. 787) 264 @ 290-291, PARAS. H-D. He submitted that the attitude of the court where severance benefits have been paid, is to terminate the action and dismiss the case as there is nothing to dilate further. ABE UNILORIN (2013) 16 NWLR (PT. 1379) 183 @ Pp. 203-204, PARAS. G-A. Defendant Counsel argued that assuming but not conceding that the contract of employment was wrongfully terminated, submitted that the remedy or damages due and payable to an employee whose employment was “unlawfully terminated” in ordinary contract of employment is the salary he would have earned over the period of notice and not future or anticipated salary after the contract has been terminated or salary for period of services not rendered. OGBAJI v. AREWA TEXTILES PLC (2000) 11 NWLR (PT. 678) 322 RATIO 5; INTERNATIONAL DRILLING CO. NIG. LTD. v. AJIJALA (1976) 2 SC 115; WNDC v> ABIMBOLA (1966) 1 ALL NLR 159; NIGERIA PRODUCE MARKETING BOARD v. ADEWUNMI (1972) 1 ALL NLR 870 PT. 2.
And on that note Learned Counsel for the defendant continued assuming but not conceding that the claimant was wrongfully terminated submitted that the position of the Court of Appeal in the case of SPRING BANK PLC v. BABATUNDE is that a servant who has been unlawfully dismissed cannot claim wages for services not rendered. OLATUNBOSUN v. NIGER COUNCIL (1988) 3 NWLR (PT. 80) 25 referred to]; UBN PLC v. TOYINBO (2008) LPELR-5056 (CA), per Agbaje, JCA (P. 66, PARAS. A-F).
The Claimant’s Final Written Address was dated 12th July and filed on the 13th July 2016 wherein the claimant framed three issues for determination:
ON ISSUE 1
Whether from the facts and circumstances of this case, and the evidence on record, the claimant’s fundamental right as enshrined in the Constitution of the Federal republic of Nigeria, 1999 (as altered) was infringed upon.
ON ISSUE 2
Whether the claimant’s employment was wrongfully terminated
ON ISSUE 3
Whether the claimant proved her case to entitle her to the grant of the reliefs sought by this Honorable Court and whether the principle of vicarious liability is applicable in the circumstance of this case.
The defendants REPLY ON POINTS OF LAW dated and filed on 20th July, 2016.
ON ISSUE 1
Whether from the facts and circumstances of this case, and the evidence on record, the claimant’s fundamental right as enshrined in the Constitution of the Federal republic of Nigeria, 1999 (as altered) was infringed upon.
Regarding claimant’s counsel argument for enforcement of fundamental right by way of address, the defendants contended that the instant case is not an action for enforcement of fundamental rights and cannot be converted at this stage to a fundamental rights action. Arguing that a party and his counsel must be consistent in the presentation of this case. ALHAJI IBRAHIM SHEKA v. ALHAJI UMARU BASHARI (2013) LPELR-21403 (CA), per Abiru, JCA (P. 36, PARAS. C-G); per Mbaba, JCA (P. 48, PARAS. D-F). He submitted that if the claimant alleged that her fundamental right has been contravened, the proper approach is for her to proceed in accordance with the provisions of the Fundamental Right Civil Procedure Rules. SEC. 46 of the CONSTITUTITON OF THE FEDERAL REPUBLIC OF NIGERIA, 1999; ATAKPA v. EBETOR (2015) 3 NWLR (PT. 1447) 549 @ 568-569, PARAS. F-A; CHIEF FRNACIS IGWE & ORS. V. MR. GOODY EZEANOCHIE & ORS. (2009) LPELR-11885 (CA); (2010) 7 NWLR (PT. 1192) P. 6.
Defendant’s Counsel argued that the claimant did not file any reply to deny or rebute paragraph 5 of the Statement of Defence setting out the reason for the 2nd defendant’s termination of the contract of employment, thus, such failure to file a reply to new facts in the pleadings of a defendant amounts to an admission. A.G. ABIA STATE v. A.G. FEDERATION & ORS. (2005) LPELR-3151 (SC); 12 NWLR (PT. 940) P. 452 RATIO 9; BALOGUN v. E.O.C.B. (NIG.) LTD. (2007) 5 NWLR (PT. 1028) 584 @ 600, PARAS. E-F (CA).
ON ISSUE 2
Whether the claimant’s employment was wrongfully terminated.
Learned Defence Counsel submitted that the claimant must understand that a juristic person is distinct and different from its directors or officers and that acts through its designated officers. VASSILE v. PAAS INDUSTRIES LTD. (2000) 12 NWLR (PT. 681) 357; (2000) FWLR (PT. 19) 130, per Agube, JCA (Pp. 61-63, PARAS. G-C). He argued that the claimant must distinguish between the applicable principles under contracts with statutory flavour and master/servant relationship. OLAREWAJU v. AFRIBANK (NIG.) PLC (2001) 13 NWLR (PT. 731) 691; MR. KUNLE OSISANYA v. AFRIBANK NIGERIA PLC (2007) 6 NWLR (PT. 1031) 565 RATIO 1. As it is counsel’s submission that the claimant, having received her terminal benefit cannot be heard to complain that her employment was unlawfully terminated. GUINESS (NIG.0 LTD. v. AGOMA (1992) 7 NWLR (PT. 256) 728 RATIO 5; ILOABACHIE v. PROF. PHILIPS & ANOR. (2002) FWLR (PT. 115) 72; (2002) 14 NWLR (PT. 787) 264 @ 290.
ON ISSUE 3
Whether the claimant proved her case to entitle her to the grant of the reliefs sought by this Honorable Court and whether the principle of vicarious liability is applicable in the circumstance of this case.
Counsel to the defendant submitted that for the 1st defendant to be liable in tort such as to invoke the principle of vicarious liability, the tort itself has to be clearly pleaded and established and it must be shown that the tort was not done by the servant on his own personal frolic. SANDERSON v. COLLINS (1904) 1 KB 628; Coram: Collins MR. Defence Counsel submitted that it is trite law that parties are bound by their contract and the court is only bound to give effect to the contract of the parties especially where the terms are clear and unambiguous. ISHENO v. JULIUS BERGER NIG. PLC (2008) 2-3 SC II P. 78; DELTA STATE AGRICULTURAL DEVELOPMENT v. MR. MIKE ILOUKWU OFONYE (2007) LPELR-8342 (CA). He argued that there is no place in the contract of employment where the claimant upon termination of employment is entitled to salaries that not due, or unearned salaries or any salaries after termination of employment, as a servant cannot claim wages for services never rendered. OLATUNBOSUN v. NISER COUNCIL (1988) 3 NWLR (PT. 80); SPRING BANK PLC v. BABATUNDE (2012) 5 NWLR (PT. 1292) 87
The parties adopted their written addresses on the 13th October 2016 and the matter was reserved for this ruling.
The Court’s Decision
I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submissions are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether the claimant is entitled to the reliefs sought, and in resolving this main issue the issues formulated by the claimant most aptly suit the issues in this case as shall be adopted by this court as the issues for determination of this suit.
ISSUE 1
Whether from the facts and circumstances of this case, and the evidence on record, the claimant’s fundamental right as enshrined in the Constitution of the Federal republic of Nigeria, 1999 (as altered) was infringed upon.
ON ISSUE 2
Whether the claimant’s employment was wrongfully terminated
ON ISSUE 3
Whether the claimant proved her case to entitle her to the grant of the reliefs sought by this Honorable Court and whether the principle of vicarious liability is applicable in the circumstance of this case.
Before addressing the merits of this case, I wish to address the concept of workplace sexual harassment.
The defendants counsel during the trial, particularly made several submissions to the effect that it is expected among adults that a man would naturally chase a woman, make romantic overtures, the editorializing notwithstanding if the learned defence counsel sought to or was attempting to probably trivialize the whole sexual harassment argument with the view that it is part of the societal fabric that men would approach a good looking girl and tell her of his interest. That would be the learned defendants, counsel’s personal opinion but not the position of the law.
Especially as it is a proponent of law that “a person shall…..be taken to sexually harass another person if the first mentioned person makes an unwelcome sexual advance or an unwelcome request for sexual favours, to the other, or engages in other unwelcome conduct of a sexual nature in relation to that other person See Section 28(3) of the Federal Sex Discrimination Act (SDA) 1984 of Australia, and closer to home;
The framers of the 1999 constitution thought the issue serious enough to protect against it under Section 42 of the 1999 Constitution as altered. The right of a worker against discrimination in the workplace is therefore subsumed under the fundamental rights provision in Chapter IV of the 1999 Constitution. This makes the right of action by a worker against discrimination a constitutional issue rather than a workplace issue. “…..discrimination as a workplace issue is more peculiar (and takes account of more issues such as HIV/AIDS, equality of pay and treatment, gender mainstreaming, sexual harassment, etc.) than discrimination (just) as a constitutional issue” My learned brother, in the paper he presented on “Labour Rights, the Democratic Process and the Nigerian Emerging Market” by Hon Justice B.B. Kanyip on 28th August 2012 at the Section on Legal Practice Session of the 52nd Nigeria Bar Association (NBA) Conference. Abuja, August 26 – 31, 2012.
Bearing in mind that labour law is meant to be protective of workers given the imbalance in power relations between employers and workers, KURT SEVERINSEN V. EMERGING MARKETS TELECOMMUNICATION SERVICES LTD [2012] 27 NLLR (PT. 78) 374 AT 460 acknowledged the unequal bargaining power between employees and employers.
Learned Authour Alok Bhasin in his book Sexual Harassment at Work 2nd Edition East Book Company 2015 dealt in details with this concept. It would be beneficial to look at this body of work at this time . To the question What is sexual Harassment? The Leaned authour posited the followings.
“Sexual harassment” may take diverse and varied forms. It is not limited to demands for sexual favours made under threats of adverse job consequences should the recipient refuse to comply with such demands. Victims of sexual harassment need not establish that they were not hired, were denied a promotion or were dismissed from service as a result of their refusal to participate in sexual activity.
Sexual harassment may be subtle and may even involve what would otherwise constitute normal sexual or social activity. Conduct constituting sexual harassment encompasses both the physical and the psychological. Milder forms of sexual harassment include verbal innuendos and affectionate gestures that are inappropriate in the circumstance, repeated social invitations for dinner or drinks, or unwelcome flirting where the implicit message is that sexual favours are anticipated or expected. Normal sexual or social activity may become sexual harassment where a power differential exists between the parties. In most cases of sexual harassment the perpetrator is a person in a position of authority who abuses that power, both economically and sexually. ” Taken from Dutton V British Columbia Human Rights Tribunal 2001 etc. Also the learned authour continued… “Speaking generally, sexual harassment is “behavior with a sexual connotation that is abusive, injurious and unwelcome.” For the victim, sexual harassment has direct consequences for the maintenance or improvement of his or her living conditions and/or places him or her in an atmosphere of intimidation, humiliation or hostility.” Quebec (Commission des droits de la personae) v Habachi, 1992 RJQ (Human Rights Tribunal Canada).
Also that “ “Sexual harassment is both sexual and unwelcome” it may be constituted by many or a single act and broadly speaking, the intention of the harasser is not relevant. ”__Jones V. Armas Nominiees (P) Ltd. 59.IR Judicial Register Millane.
“Quid Pro Quo” and “Hostile Environment” Sexual Harassment -The development of jurisprudence in the area of “sexual harassment at work” has made it possible to identify two main forms of sexual harassment: sexual blackmail (quid pro quo harassment) and hostile environment harassment. Quid pro quo harassment is characterized by the denial of an economic benefit to punish the victim for rejecting a sexual overture or demand. Among other things, “[t]he consequence of rejecting a vexatious sexual advance may be refusal to hire, increase in workload, denial of promotion, or dismissal or forced resignation.”__ Quebec (Commission des droits de la personae) v Habachi, 1992 RJQ (Human Rights Tribunal Canada).
Hostile environment harassment “is a more subtle and insidious phenomenon.” Such as An employee, because of such individual’s race, colour, Religion, sex, or national origin. And includes Harassment that is sever or pervasive.
The main point in allegations of sexual harassment is that unwelcome sexual conduct has invaded the workplace, irrespective of whether the consequences of the harassment included a denial of concrete employment rewards for refusing to participate in sexual activity.
Sexual annoyance itself may be of two forms. In one form, the perpetrator pesters the recipient with demands for sexual favours, but the recipient persistently refuses. “Although that refusal does not cause any loss in job benefits, the very persistence of the demands creates an offensive work environment, which the employee should not be compelled to endure.” The other form “encompasses all other conduct of a sexual nature that demeans or humiliates the person addressed and in that way also creates an offensive work environment.” This would include sexual taunts, lewd or provocative comments and gestures, and sexually-offensive physical conduct.
Sexual harassment is any sexually-oriented conduct that may endanger the victim’s job, negatively affect the victim’s job performance or undermine the victim’s personal dignity. It may manifest itself physically or psychologically. Its milder and subtle forms may imply verbal innuendo, inappropriate affectionate gesture or propositions for dates and sexual favours. However, it may also assume blatant and ugly forms like leering, physical grabbing and sexual assault or sexual molestation.
As noted by Dickson CJ of the Supreme Court of Canada in Janzen v. Platy Enterprise Ltd. (1989) I SCR 1252: (1989) 59 DLR (4th)352 10 CHER6205 (Can SC)., in most cases of sexual harassment, the perpetrator (mis) uses “ a position of power to import sexual requirements into the workplace thereby negatively altering the working conditions of employees who are forced to contend with sexual demands.” Sexual harassment involves “the unwanted imposition of sexual requirements in the context of a relationship of unequal power”.it is important to bear in mind that the perpetrator of sexual harassing behavior may not be motivated only by sexual desire or lust.
The perpetrator may simply be demonstrating his or her power to the victim. In many cases, such behavior may be a by-product of the prevailing stereotypes in the system. Thus, male perpetrators may indulge in sexually-harassing behaviour to simply show the female victim “her place” or to convey to her that she is good only for gratifying their sexual desires. While case involving sexual harassment of subordinates by superior officers may be characterized by the perpetrator’s desire to assert power over the recipients, those involving sexual harassment by co-employees (including subordinates) and outsiders (like the employer’s customers)
Because of the characteristics and effects of such behaviour, sexual harassment necessarily interferes with the right to the safeguard of one’s dignity. “Hence, in the event of (sexual) harassment, interference with the right to the safeguard of one’s dignity also has a discriminatory character inasmuch as this behaviour automatically deprives a person, on the basis of an unlawful criterion, of enjoyment of the right (to dignity).”
Any definition of sexual harassment should be broad enough to encompass both “sexual” conduct or behaviour as well as “sex-based” behaviour. “Disparaging comments on the role of women, their place in the labour market, or their skills and capabilities,” “inaccurate criticisms of job performance, obstruction, etc.,” could all constitute sex-based harassment. In contrast, sexual conduct refers to forms of behavior that are explicitly sexual, as for example, inappropriate touching, sexual comments or jokes, as also sexual violence.”
As observed by the ILO, some acts are “readily identifiable” as sexual harassment because they are “inherently offensive”, such as those involving physical violence or verbal aggression. However, many acts, depending on the circumstances, may be entirely harmless. “For example, in some cultures, physical touching upon greeting will be normal behaviour, whereas in other cultures it might be interpreted as insulting or a sexual advance. Behaviour which is acceptable between friends at work may be offensive if displayed by newcomers or outsiders.” Thus, the degree of physical contact tolerated between colleagues, as also the range of topics considered appropriate to discuss in the workplace, may differ amongst different cultures. It is, therefore, neither possible nor desirable to make a comprehensive list of the acts constituting sexual harassment.
In the instant case the claimant complained of being the subject of unwanted advances from the 1st defendant, the team leader, authorizing and and reporting officer, act such as; improper comments e.g. saying that her voice arrests him, as well as overtures such as slapping her buttocks and embracing her against her will, this she complained went on from the 1st week of her employment. The testimony of DW under cross examination confirmed that the allegations against the 1st defendant were investigated by the Senior Director West Africa, but this court was not told of the outcome of that investigation. I find that the complaints of the claimant fall within the recognized categories of act that constitute sexual harassment.
With regard to the first issue whether from the facts and circumstances of this case, and the evidence on record, the claimant’s fundamental right as enshrined in the Constitution of the Federal republic of Nigeria, 1999 (as altered) was infringed upon.
In order to properly evaluate the issues in this suit, it is necessary to determine the nature of the employment relationship between the parties. In LONGE Vs. FBN LTD [2010] LPELR 1793 SC the Supreme Court held that “….there are three categories of employment
(a) Purely Master and Servant relationship
(b) Servants who hold their office at the pleasure of the employer
(c) Employment with statutory flavour….”
And in CHUKWUDINMA v. ACCESS BANK PLC (2015) 52 NLLR (PT. 176) 513 @ 519 NIC This court held that “when an employee complains that his employment has been wrongfully terminated, the employee has the onus to place before the Court the terms and conditions of the cont
