MEMORANDUM AND ORDER LAINA HANGADA
MEMORANDUM AND ORDER
LAINA HANGADA, LAWYER
Ms. Daniels brings this action against her co-worker Mr Ray alleging him of sexual harassment.
Ms. Daniels is a single mother who has recently resided in Windhoek and was hired by an Insurance company as a secretary .Her co-worker , Mr Ray whom she got assigned to for made her uncomfortable upon meeting her by the way he looked at her when they were being introduced on the first day of work.
THE SEXUAL HARASSMENT CLAIMS
Mr Ray told Ms. Daniels “off color Jokes” which made her very uncomfortable.
Occasionally Mr Ray would lean against Ms. Daniels thigh when he would talk to her at her desk.
He made petty requests like asking her to join him for a “hot tub” after work which is an inappropriate remark to make during work.
He once threw a pencil at her breasts and made a mockery out of it.
Not long after Ms. Daniels started working for the company, Mr. Ray made offers for Ms. Daniels and him to go away for a weekend. This offended Ms. Daniels deeply.
Mr Ray went as far as putting a pack of sweets in the front pocket of her blouse just to humiliate her by asking her “which side is bigger”.
After all the humiliation, Ms. Daniels took the matter up to the office manager to report Mr. Ray’s conduct. The office manager Mr. Gawiseb did however not take this matter seriously which disappointed Ms. Daniels. After Ms. Daniels transfer to work for another director, Mr. Ray began to appear by her desk at her new work post and he would just stare at her which left Ms. Daniels tormented.
This conflict is a formal/professional conflict that arose from multiple misconducts between an employer (secretary) and a director of the company. When the issue was reported to the office manager Mr. Gawiseb, he did not take it seriously. He however did transfer her to work for another department. Even after all of this Mr. Ray still continued to be a problem for Ms. Daniels. He began to appear randomly by her desk just to stare at her. This is what led Ms. Daniels to take up this case for mediation.
This situation is a conflict that has escalated to becoming a dispute because sexual harassment is a serious crime. Sexual harassment at a workplace is still one of the many forms of Gender-based violence that is known to by the Namibian people. It is the practice of unwanted sexual conduct in a workplace. The conduct could be a reoccurring invitation for dates and might as well include disturbing and uncomfortable sexual remarks about a person’s appearance .It is evident that verbal and physical conduct of a sexual nature turns into sexual harassment when the conduct affects a victims employment, work performance, creates an atmosphere of intimidation and hostility at work. Multiple cases of sexual harassment are left unsolved as most victims are subordinate to the offenders. Hence no reports are made as the victim is in fear of losing their jobs. “It all boils down to respect. There are men who believe that they are entitled to just because they were born male” says former director of the LAC, Norman Tjombe.
INTERESTS OF MS DANIELS
Ms. Daniels wishes to be compensated with an amount of N$ 800 000-00.This amount is very reasonable considering the damages caused by this whole case.
Damages causing interests
The therapy that she attended to try to help her cope with the situation cost her over N$ 10 000-00.Thats a very high price for her to pay considering her monthly salary is not that high and she has other expenses and she does not want to exhaust her salary’s benefits (medical aid to be more specific ).
Ms. Daniels will need the money to continue her therapy for at least once a week for the next six (6) months.
The cost of the lawyer representing Ms. Daniels needs to be deducted from the money she is being compensated.
Since this case caused her multiple losses, Ms. Daniels has been living on her savings which are almost done and she might be forced to start using her retirement funds soon.
The goal is to reach some common ground on the amount being compensated to Ms. Daniels. The amount N$800 000-00 is the initial and preferred amount, although if need be negotiating this value will be acceptable to Ms. Daniels. The final amount agreed to should be nothing under N$ 750 000-00, but mercifully Ms. Daniels has reduced the final value to be nothing less than N$650 000-00. With further evidence that the money will really be used to pay for the debts caused by this traumatizing harassment, receipts from the therapy center are in our possession as well as her latest bank statements that clearly shows a dry run on money. Further the law firm has sent out the amount to be paid to her assigned lawyer.Mitigating factors to this case
Ms. Daniels has not suffered any violence, threats or coercion.
Aggravating factors to this case
No remorse was ever shown by Mr. Ray for his harassment
Mr. Ray is not new to this kind of act .He has harassed secretaries of the company before. Two of them are known by Ms. Daniels. But of course due to their fear of losing their jobs they decided not to take any action against it.
The severity of the state in which this whole experience has left my client is extremely unjustifiable. She lives in constant fear of possible harassment and is unable to do her work efficiently.
My client is a woman, she is very vulnerable to defend herself physically had the harassment had gotten out of hand (example a rape incident).
Ms. Daniels is always appropriately dressed in no way distracting Mr. Ray.
Mr. Ray is a trusted company employee. The fact that he is capable of such an act makes it more frustrating.
PROCEDURE’S TO BE TAKEN IN ATTEMPT TO RESOLVE THE DISPUTE
From the early stages of the conflict, Ms. Daniels was supposed to file a written grievance where she outlines her concerns, problems and complaints about Mr. Ray. She however failed to do this.
The second procedure that was overstepped was the process of constructive dismissal of where “the employee is forced to leave or quit his/her job not because they want to, but because of the employer’s conduct. The resignation could be the result of bad working conditions or changes in terms of employment which leaves the employee with no other choice but to quit.” This procedure is also clearly outlined in the Namibian Labor Act no. 11 of 2007, under the Prohibition of discrimination and sexual harassment in employment and it’s strengthened by the Namibian constitution in Article 56; Assent to Bills.
As part of the procedure to resolve the dispute, the process of Mediation is the one to be followed. This process is most suitable because it will save both clients time and money. It is also very intimate which makes whatever is being discussed confidential.
We consider the opposing party has interests and needs as well, but it is for certain that the goal remains mutual; to reach an amicable agreement that benefits both clients. An interest that might arise from the other party is that Mr. Ray should pay lesser than the stated amount for compensation as he also has ample expenses to pay. He might take a position that he will only pay what he feels is the deserved amount for the damages he imposed on Ms. Daniels. Since Mr. Ray is a respected employee in the company and he has a high reputation and post at his workplace he would want a more discrete method of resolving this dispute. There is a high chance of them agreeing to mediation.
FAILURE TO AGREE TO THE TERMS DISCUSSED OR REACH A MUTUAL AGREEMENT (CONCLUSION)
Should an agreement not be reached due to disagreements over the different conditions and terms, my client will take the matter for further resolution. The matter will be filed for Arbitration.