Sexual harassment: NIC awards N40m against employer

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This edition of Labour Vanguard concludes the story of  Mrs. Ejieke Maduka,  then an employee with Microsoft Nigeria Limited who was sacked over issues bordering on sexual harassment. She filed a suit at the National Industrial Court (NIC) and the case was decided in her favour. The first part of this story was published last week. Here is the concluding part which states the presentations   of the employer, their witnesses, applicant  and the verdict of the presiding judge. A story for the records, readers reactions could be sent to komolafe21@yahoo.com

By Innocent Anaba

THE parties to the dispute are applicant,  Mrs. Ejieke Maduka against first respondent, Microsoft Nigeria Limited, second respondent, Microsoft Corporation, third respondent, Mr.  Emmanuel Onyeje and the fourth respondent, Mr.  Adefolu Majekodunmi.

Having listened to the presentations of the parties, the trial judge at the National Industrial Court (NIC), Justice O. Obaseki  after listening to all the  parties said: “I find that the first respondent has not implemented the sexual harassment policy.

“The second respondent on becoming aware launched an investigation in the United States of America. This is confirmed by the third respondent’s witness. There is no evidence that the applicant was invited or interviewed in respect of her allegations when the investigation commenced, neither is there any evidence of the outcome of the investigation. Indeed, the second respondent in its counter-affidavit deposed to the following facts: that being domiciled in the United States of America, and a separate legal entity, it is not in a position to investigate allegations or meddle in matters involving the first respondent’s employees; that it did not direct the first respondent to terminate the applicant’s employment; that it did not violate the rights of the applicant and does not owe her a duty of care and protection because she is not its employee.

“This I find to be completely at variance with its solicitors letter earlier reproduced above and is indicative that the second respondent did not tell the truth on oath. I find that by the inaction and silence of the first and second respondent, they both tolerated and ratified the third 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 third respondent within the apparent scope of authority they entrusted to him.

“The applicant has asked for an award of general damages and exemplary and aggravated damages. Exemplary damages are awarded in very restricted and enumerated situations as a punitive measure where malice or gross disregard for the law is proved. The applicant’s fundamental rights have been violated. Her pride, dignity and sense or self worth have been injured by the actions of the respondents. I think an award of general damages which she is entitled to will meet the justice of this case. She has deposed to the fact that her annual base pay is NI3. 225m.This has not been denied by the respondents. Consequently, and on the authority of section 19 (d) of the National Industrial Court act, 2006, I make an award of general damages in favour of the applicant as follows: each of the respondents is to pay the applicant, the sum of N13.225m, which represents her annual base pay for sexual harassment and a breach of her fundamental human rights.

“I hereby, declare and make the following orders, that  the termination of the applicant’s employment by the first  and second respondents through their agent, the third respondent, simply because she refused to succumb to the sexual harassment from the third  respondent, the ratification of same by  first, second, third respondents and the subsequent conduct of the respondents constitute a violation of the applicant’s fundamental right to human dignity and freedom from discrimination as guaranteed by Section 34 and 42 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Articles 2, 5, 14, I5 and 19 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, CAPA9, Laws of the Federation, 2004.

*The termination of the applicant’s employment by the first and second  respondents through their agent, the third respondent, who had failed to desist from acts of assault and continuous sexual harassment of the applicant which resulted in retaliatory acts and conducts by the third  respondent and the ratification of same by the first  and second respondents and the subsequent conduct of all the respondents constitutes a violation of the applicant’s Fundamental Rights to Human Dignity and Freedom from Discrimination as guaranteed by sections 34 and 42 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Articles 2, 5, 14, 15 and 19 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act Cap A9, laws of Federation, 2004,

*The acts of the third respondent, an agent of the first and second respondents, incessantly handling the applicant’s waist against her will and without her consent, constitutes assault and trespass on the person of the applicant.

* Each of the respondents (Ist, 2nd and 3rd ) is to pay to the applicant the sum of N13,225m as general damages for the violation of  the applicants rights as guaranteed under Sections 34 and 42 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Articles 2, 5, 14, 15 and 19 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act Cap A9, Laws of the Federation, 2004.

* The first and second respondents are to immediately implement the sexual harassment policy to prevent a recurrence of a hostile working environment, sexual harassment in the first respondent. The sums are to be paid within 30 days.”

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