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

In protection of women…

9 March 2015

In the spirit of celebrating International Women’s Day (8 March 2015), here is a short note on the efforts of the authorities to ensure “fair representation” and “protection” of women in the workforce:

TL;DR:

1. At least 33% of the workforce should be women.

2. Female workers should be included in trade unions in proportion to their numerical strength in the organization.

3. Employer’s representation councils should include women in proportion to their numerical strength in the organization.

4. Governing body of the Employees Social Security Institution should include a woman.

5. Minimum Wages Board should include a woman.

6. National Committee on the Rights of the Child should consist of 4 women among the 10 experts employed.

7. All provisions of the law in respect of the protection of harassment of women at the workplace should be employed, implemented and extended to women.

8. Where 25 or more women are employed, the employer(s) shall reserve a suitable daycare room for children under 6 years of the women employed, maintained in accordance with such standards as may be notified.

Detailed Note: The Government of Punjab passed the Punjab Fair Representation of Women Act, 2014 (the “FRWA”) in respect of fair representation of women in the workforce, applicable to the various sectors and companies functioning in the Province.

The discussion, herein, is limited to the applicability of the FRWA to private limited companies.

The Schedule to the FRWA provides a list (the “List”) of sixty six (66) acts and ordinances that are amended by the FRWA to ensure fair representation of women in decision-making bodies and their empowerment at the workplace. The requirement of ensuring that the workforce consists of at least thirty three percent (33%) women, as stated in the Punjab Women Empowerment Package, 2012*, is provided in the following statutes.

None of the following laws are applicable to companies:

(a) The Town Improvement Act, 1922;

(b) The Punjab Government Servants Benevolent Fund Ordinance, 1960;

(c) The Punjab Health Foundation Act, 1992;

(d) The Punjab Information Technology Board Ordinance, 1999;

(e) The Punjab Medical and Health Institutions Act, 2003;

(f) The Punjab Technical Education and Vocational Training Authority Act, 2010; and

(g) The Punjab Holy Quran (Printing and Recording) Act, 2011.

The laws applicable to companies are:

(1) Punjab Industrial Relations Act, 2010

(a) The Punjab Industrial Relations Act, 2010 (the “PIRA”), included in the List, applies to all persons employed in any establishment.

PIRA defines “establishment” to include a company employing workers in Punjab:

(ix) “establishment” means any office, firm, factory, society, undertaking, company, shop, premises or enterprise in the Punjab, which employs workmen directly or through a contractor for the purpose of carrying on any business or industry and includes all its departments and branches, whether situated in the same place or in different places having a common balance sheet and except in section 25 includes a collective bargaining unit, if any, constituted in any establishment or group of establishments; (emphasis added)

“Workman” is defined as follows:

(xxxi) “worker” and “workman” mean a person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied… (emphasis added)

The provisions of PIRA would, thus, be applicable to a company.

(b) The amended Section 6(2) of the PIRA provides:

(2) Without prejudice to the provisions of sub-section (1), a trade union of workmen shall not be entitled to registration under the Act– …. (c) if women are employed as workers in the establishment, group of establishments or industry with which the trade union is connected, unless it has included the female workers in the executive body, not being less than the proportion of their numerical strength in the work force of the establishment, group of establishments or industry. (emphasis added)

Section 6(2) provides that a trade union of workmen shall not be entitled to registration under the PIRA, unless the trade union has included female works in the executive body (management) in proportion to their numerical strength in the work force of the establishment (Section 6(2)(c)).

(c) The amended sub-section (2) to Section 29 (Workers Management Council) provides as follows:

(2)   The employer’s representative in the council shall be from amongst the directors or their nominees or senior executives and the workers’ representatives shall be workmen employed in the same establishment and shall– (a) where there is a collective bargaining agent in the establishment, be nominated by it, or (b) where there is no collective bargaining agent in the establishment, be elected by simple majority at a secret ballot by all workmen employed in the establishment; and (c)   if women are employed as workers in the establishment, be women not less than the proportion of their numerical strength in the work force of the establishment. (emphasis added)

Section 29(2)(c) thus provides that the employer’s representative in the council shall be from amongst the directors/ their nominees/ senior executives and the workers’ representatives shall be workmen employed in the same establishment provided that if women are employed as workers then the proportion of their representation shall be in proportion to their numerical strength in the work force.

(2) The Provincial Employees’ Social Security Ordinance, 1965

The Provincial Employees’ Social Security Ordinance, 1965 is amended to the extent that sub-section (1) of Section 5 (Governing Body) includes that at least one (1) woman should be included in the three (3) persons to represent the employers (Section 5(1)(c)) and secured persons (Section 5(1)(d)) in the governing body of the Employed Social Security Institution.

(3) The Minimum Wages Ordinance, 1961

The Minimum Wages Ordinance, 1961 is amended, by virtue of sub-section (1) to Section 3 (Establishment of Minimum Wages Boards) to include that the three (3) persons to represent the employers (Section 3(1)(c)) and workers of the Province should include at least one (1) woman (Section 3(1)(d)) in the Minimum Wages Board of the Province.

(4) The Employment of Children Act, 1991

The Employment of Children Act, 1991 is amended to include “four (4) women” in the National Committee on the Rights of the Child that shall consist of the Chairman and ten (10) experts, in sub-section (2) of Section 5 (National Committee on the Rights of the Child).

(5) The Protection Against Harassment of Women at Workplace Act, 2010 (the “PAHWWA”)

(a) The PAHWWA provides for the protection of women from harassment at the workplace. Section 2(n) defines workplace to be a place of work where an organization or employer operates.

(b) “Organization” is defined in Section 2(l) to include a company:

(1) “organization” means a Federal or Provincial Government Ministry, Division or department, a corporation or any autonomous or semi-autonomous body, Educational Institutes, Medical facilities established or controlled by the Federal or Provincial Government or District Government or registered civil society associations or privately managed a commercial or an industrial establishment or institution, a company as defined in the Companies Ordinance, 1984 (XLVII of 1984) and includes any other registered private sector organization or institution; (emphasis added)

(6) The Punjab Shops and Establishment (Amendment) Act, 2014

The Punjab Shops and Establishment (Amendment) Act, 2014 (the “Act”) amends the West Pakistan Shops and Establishments Ordinance, 1969 (the “Ordinance”) to the effect that daycare rooms for children should be added to any establishment or company where twenty five (25) or more women are employed:

10-A. Daycare rooms for children.— (1) Where twenty five or more women are employed in an establishment, the employer shall reserve a suitable daycare room for under six years old children of the women. (2) The daycare room shall be established, managed and conformed to such standards, as may be prescribed.

*The Punjab Women Empowerment Package, 2012 is a guide prepared by the Women Development Department, Government of Punjab to intimate the proposed amendments to various laws for the empowerment of women in the workforce. The Punjab Women Empowerment Package, 2012 does not have statutory force and is not a legal document.

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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