Namibia: Understanding Constructive Dismissal By Virtue of Sexual Harassment in the Workplace

A workplace is a place where employees go to work in the pursuit of fulfilling their employment contracts with an employer. It is a place of work. Places of work should be designed to offer an environment of safety and tranquillity to enable employees to remain productive in rendering services to their employer. Notwithstanding the above, the experience continues to show that employees are constantly exposed to a plethora of threats while at work. Certain threats and conduct on the part of an employer or co-employee are inherently capable of culminating in ending an employment relationship.

In terms of the above, there are genuine cases in which an employee is left with only the most brutal alternative, which is to resign from his or her employment due to a prevailing intolerable working environment created by the employer or which the employer tolerates.

The above scenario constitutes constructive dismissal. Constructive dismissal is broadly defined as dismissal in terms of which an employee terminates his or her employment with an employer because the employer made continued employment intolerable for the employee.

Therefore, the employee invokes termination of employment as the employer made the working conditions so bad that, reasonably the employee cannot perform his or her duties effectively let alone continue the employment relationship.

This is the one form of dismissal where termination of employment is invoked by the employee. Although the employee is one who invokes termination of employment, the law regards the termination as dismissal other than resignation, because the conduct of the employer forced the termination of employment.

In terms of our Labour Act, 2007, Section 5(9) states, “where sexual harassment is perpetuated by an employer against an employee, and that employee resigns because of the sexual harassment, that resignation constitutes a constructive dismissal. Accordingly, an employee who has been subjected to perpetual sexual harassment and resigns in desperation will be said to have been constructively dismissed.

However, the onus of proving constructive dismissal initially rests with the employee, once discharged, the burden shifts to the employer. This means that the employee would initially have to prove constructive dismissal to succeed in his or her claim. To prove constructive dismissal, the employee must have resigned from his or her employment as a last resort, and such resignation should be attributed to intolerable conduct of the employer.

The test for constructive dismissal is an objective one. Therefore, the conduct of the employer will be viewed in an objective sense. Furthermore, there should be a causal link between the resignation and the intolerable circumstances. In other words, the intolerable working relationship must be the direct cause of the resignation.

Sexual harassment is prevalent in the workplace, although it is either downplayed or not formally treated. Sexual harassment may be defined as the unwarranted sexual behaviour towards an employee by the employer or a co-worker.

It can occur when an employer or co-worker solicits sexual favours from an unwilling employee in a manner that amounts to harassment, which creates an intimidating, hostile or offensive environment for the latter.

The law provides that, where an employee resigns to escape continuous sexual harassment in the workplace, such employee is entitled to the same remedies as an employee who has been unfairly dismissed.

Research conducted at the Office of the Labour Commissioner revealed that cases of constructive dismissal resulting from sexual harassment are hardly reported. This, according to the office, constructive dismissal as a result of sexual harassment is hard to prove and the concept is habitually misconstrued.

Firstly, there must be a termination of the employment contract by the employee. Secondly, the termination should be attributed to the intolerable and unjustifiable conduct of the employer or co-worker, which made continued employment unbearable for the employee. Thirdly, the employee should prove all applicable/possible internal remedies have been exhausted before resignation. Therefore, resignation should be the employee’s last resort. An important question is whether the remedies available at law are appealing enough, that the victims would favour resignation rather than succumbing to the pressure in fear of losing their only source of income? It is doubtful whether cases which could constitute constructive dismissal resulting from sexual harassment do exist in the workplace, since they never materialise. Victims would rather suffer in silence at the hands of their counterparts. Employees who endure sexual harassment may choose to tolerate it than report it as reporting it may lead to an even strained relationship which may become intolerable. The resolution to endure sexual harassment may be harmonised with the reality of losing one’s job and not being able to secure another given the high unemployment rate.