Harassment at the Workplace – What should I do ?!

KNOW YOUR RIGHTS!

In addition to the earlier post re protection of women in Pakistan, many have queried in respect of what should be done if a woman actually experiences harassment in the workplace in Pakistan. With the harassment case at LUMS (read about it at the LUMS official website: http://dailystudent.lums.edu.pk/lds/the-vice-chancellor-dr-sohail-naqvi-on-the-sexual-harassment-case/) becoming widely popular, many are concerned of the steps that are to be taken, in law, if such sexual harassment is experienced.

TL;DR:

1. If you are or anyone you know is facing sexual harassment at your workplace, the law provides for certain rights and procedures.

2. It is the duty of your employer, by law, to have an Inquiry Committee and a Code of Conduct in place to deal with harassment internally. If such bodies/procedures are not in place, the employee is permitted to complain directly to the Ombudsman (appointee of the Government) or file a petition against the employer (for not complying with having the correct fora in place) in a District Court for which the employer, if guilty, will be liable to a fine.

3. Workplaces include universities, schools, colleges, businesses, corporations, public sector companies, private companies, multi-nationals, hospitals, clinics, factories, branches, departments and any place where an employee operates.

There are, practically, no places of work that are exempt from the ambit of the Protection Against Harassment of Women at the Workplace Act, 2010.

4. All proceedings, whether conducted internally or externally, are to be confidential.

5. Strict timelines are imposed by the law and therefore, the authorities are not allowed to delay the dispensing of justice or discourage the complainant.

6. Your organization is responsible to impose and implement penalties on the accused if found guilty. Such penalties range from warnings to fines to temporary and even permanent stoppage of work.

7. Your organization is responsible to compensate for the harm caused to you either by offering therapy, medical treatment or damages.

8. The intention of the law is to have a zero-tolerance policy with respect to harassment of women at work. This is an encouraging trend to facilitate women to continue working without the threats of harassment and abuse.

1. General

(1) Under the Protection Against Harassment of Women at the Workplace Act, 2010 (the “Protection Act”), (sexual) “harassment” is defined in Section 2(h) as:

(h) “harassment” means any unwelcome sexual advance, request for sexual favors or other verbal or written communication or physical conduct of a sexual nature or sexually demeaning attitudes, causing interference with work performance or creating an intimidating, hostile or offensive work environment, or the attempt to punish the complainant for refusal to comply to such a request or is made a condition for employment;

Therefore, the Protection Act provides for a restricted meaning of the term “harassment”. It states that “harassment means” and does not state that “harassment included”. The difference between “means” and “includes” in a definition has been noted in many judgments of our superior courts to point out that where “means” is used, the interpretation cannot expand the definition to include that which is not provided after “means”. This raises the concern that the matters such as gender based discrimination, same sex sexual harassment and the many examples of sexual harassment, particularly outside the “workplace”, are not within the ambit of the Protection Act. It may be argued that the Protection Act could encompass the protection of “men” also but the larger intention is to “women” specifically “at the workplace”.

2. Steps to be Taken in the Event of Sexual Harassment

(1) Most institutions are, under the Protection Act, required to formulate a sexual harassment policy to handle the complaints at an internal forum.

(2) Institutions and organizations are required to constitute an Inquiry Committee (Section 3) which consists of three (3) members of whom at least one (1) must be a woman. One (1) member shall be from the senior management, and one (1) member shall represent the employees or be a senior employee.

(3) If such an Inquiry Committee is formulated in your organization, the victim of sexual harassment is required to issue a written complaint to the Inquiry Committee and the Inquiry Committee is required, by law, to, within three (3) days:

(a) communicate to the accused the charges and statement of allegations leveled against him;

(b) require the accused within seven (7) days from the day the charge is communicated to him to submit a written defense and on his failure to do so without reasonable cause, the Inquiry Committee shall proceed ex-parte (without him); and

(c) enquire into the charge and may examine such oral or documentary evidence in support of the charge or in defense of the accused as the Inquiry Committee may consider necessary and each party shall be entitled to cross-examine the witnesses against him.

(4) All proceedings are to be kept confidential.

(5) No hostility can be created for the complainant that may prevent her from freely pursuing the complaint.

(6) The Inquiry Committee is required, thereafter, to submit its findings and recommendations to “the Competent Authority”. The Competent Authority is appointed by the management of the organization and can be any such authoritative figure as the organization deems fit.

(7) The Inquiry Committee shall recommend to the Competent Authority whether, on the basis of its findings, one or more of the following penalties may be imposed:

(i) Minor penalties:

(a) censure;

(b) withholding, for a specific period, promotion or increment;

(c) stoppage, for a specific period, at an efficiency bar in the time-scale, otherwise than for unfitness to cross such bar; and

(d) recovery of the compensation payable to the complainant from pay or any other source of the accused;

 (ii) Major penalties:

 (a) reduction to a lower post or time-scale, or to a lower stage in a time-scale;

(b) compulsory retirement;

(c) removal from service;

(d) dismissal from service; and

(e) Fine. A part of the fine can be used as compensation for the complainant. In case of the owner, the fine shall be payable to the complainant.

The Competent Authority is required to impose the recommended penalty within one (1) weeks of the receipt of the recommendation of the Inquiry Committee.

(8) If the victim has suffered trauma, it is the responsibility of the organization to arrange for psycho-social counselling or medical treatment, or permit additional medical leave. The organization may also offer compensation to the complainant in the event of loss of salary or other damages.

(9) Any party aggrieved with the decision of the Competent Authority may appeal to the Ombudsman, appointed by the Government at a Federal and Provincial Level.

(10) The Ombudsman is either an ex-judge of a high court or qualified to be appointed as a judge of the high court. The powers vested in the Ombudsman are the same as those vested in a Civil Court under the Code of Civil Procedures, 1908.

(11) The Ombudsman shall within three (3) days of receiving the complaint issue a show cause notice to the accused giving the accused five (5) days to respond.

(12) Any party aggrieved by the decision of the Ombudsman, may, within thirty (30) days of the decision, make a representation to the President of Pakistan or the Governor, who may pass such order as he may deem fit.

3. Duty of the Employer

(1) It is the responsibility of the employer to ensure implementation of the Protection Act and incorporate a Code of Conduct for protection against harassment at the workplace as part of their management policy. The Code of Conduct is attached as a Schedule to the Protection Act.

(2) The employer must form the Inquiry Committee and appoint a Competent Authority.

(3) The management must display copies of the Code of Conduct in English and in another language understood by the majority of the employees at all conspicuous places in the organization.

(4) On the failure of the employer to comply accordingly, any employee may file a petition before the District Court which shall, upon being found guilty, make the employer liable to a fine which may extend to one hundred thousand rupees but shall not be less than twenty five thousand rupees.

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Myra Khan is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

Any queries may be directed to lawyereadia@gmail.com

Can a foreign company sue in Pakistan?

4 August 2014

Under Section 456 of the Companies Ordinance, 1984 (the “Ordinance”), a foreign company may contract, deal or transact (with other companies) in Pakistan but unless the foreign company meets the requirements laid out under the laws of Pakistan, in the event of any conflict, dispute, or issue, the foreign company is not entitled to bring any suit, claim any set-off, make any counter-claim or institute any legal proceedings. Section 456 is as follows:

456. Company’s failure to comply with this part not to affect its liability under contracts, etc.-Any failure by a foreign company to comply with any of the requirements of section 451 or section 452 shall not affect the validity of any contract, dealing or transaction entered into by the company or its liability to be sued in respect thereof; but the company shall not be entitled to bring any suit, claim any set-off, make any counter-claim or institute any legal proceeding in respect of any such contract, dealing or transaction, until it has complied with the provisions of section 451 and section 452. (emphasis added)

Sections 450 to 460 of the Ordinance, inter alia, deal with the requirements that foreign companies must meet in order to effectively defend themselves or initiate proceedings in Pakistan.

Section 450 provides as follows:

450. Application of this Part to foreign companies.- This Part shall apply to all foreign companies, that is to say, companies incorporated or formed outside Pakistan which, after the commencement of this Ordinance, establish a place of business within Pakistan or which have, before the commencement of this Ordinance, established a place of business in Pakistan and continue to have an established place of business within Pakistan at the commencement of this Ordinance.

A “place of business” includes a branch, management, share transfer or registration office, factory, mine or fixed place of business but does not include an agency unless the agent exercises a general authority to negotiate and conclude contract or maintains stock of merchandise on behalf of the company.

Section 451 provides for the documents to be delivered to the registrar by foreign companies. These documents include:

(a) a certified copy of the memorandum and articles of the company (Form 38);

(b) full address of the registered or principal office of the company (Form 39);

(c) a list of the directors, chief executive and secretaries (if any) (Form 40);

(d) a return showing the full name and surname, father’s name, nationality, designation and full address in Pakistan of the principal officer of the company in Pakistan by whatever name called;

(e) the full name and surname, father’s name, nationality, designation and full address of some one (1) or more persons resident in Pakistan authorised to accept on behalf of the company service of process and any notice or other document required to be served on the company together with his consent to do so (Form 42);

(f) the full address of that office of the company in Pakistan which is deemed to be the principal place of business in Pakistan (Form 43); and

(g) particulars of principal officer of the company in Pakistan (Form 41).

Section 451 is read in line with with Rule 22 of the Companies (General Provisions and Forms) Rules, 1985.

Moreover, a foreign company is required to obtain a permission letter from the Board of Investment with a specific validity period for opening and maintaining of its branch/liaison office in Pakistan. Copy of such permission letter is required to be furnished with the documents meant for registration.

Section 454 of the Ordinance provides the statutory obligations that the foreign company is required to comply with. These include, among others, maintaining registers of Pakistani members, directors and officers at its principal place of business and keeping it open to inspection, stating the country of origin in every prospectus, exhibition of the name of the company.

Disclaimer: This post is intended as an introduction and for information only and should be read with the relevant legislation. This post does not provide or intend to provide an alternate to legal advice by a competent counsel. For any further queries or assistance, please contact Myra Khan at lawyereadia@gmail.com.

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Myra Khan is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

Any queries may be directed to lawyereadia@gmail.com