What Constitutes Sexual Harassment in Zimbabwe?

AP Aggarwal Sexual Harassment in the Workplace (Butterworths, Toronto, 1987) 1 states that:

‘Sexual harassment is a complex issue involving men and women, their perceptions and behaviour, and the social norms of the society. Sexual harassment is not confined to any one level, class, or profession. It can happen to executives as well as factory workers. It occurs not only in the workplace and in the classrooms, but even in parliamentary chambers and churches. Sexual harassment may be an expression of power or desire or both. Whether it is from superiors, co-workers, or customers, sexual harassment is an attempt to assert power over another person.

The Labour Act [Chapter 28:01] is the principal piece of legislation in Zimbabwe regulating employment and labour issues. Whist the Labour Act [Chapter 28:01] does not define the term ‘sexual harassment.’ Section 8 (h) of the Labour Act [Chapter 28:01] provides that, it is an unfair labour practice by an employer or any other person, by act or omission, if he or she ‘engages in unwelcome sexually- determined behaviour towards any employee, whether verbal or otherwise, such as making physical contact or advances, sexually coloured remarks, or displaying pornographic materials in the workplace.’

In Zimbabwe, sexual harassment is ‘harassment that relates to a sexual nature and the unwelcome or inappropriate promise of rewards in exchange of sexual favours’ 5 whether verbal or otherwise, such as making physical contact or advances, sexually coloured remarks, or displaying pornographic materials in the workplace.

The Onus of Proof in Sexual Harassment Cases in Zimbabwe

The onus of proving sexual harassment is on the party who alleges that he or she has been sexually harassed. Thus, in sexual harassment cases, the harassment is generally viewed from the point of view of the victim, on how he or she perceives it, and whether or not such a perception is reasonable.

Consequently, a victim of sexual harassment at the workplace must show that the harassment involved an exercise of power in order to gain some advantage. Where a victim fails to show that the harassment was related to exercise of power, a claim may fail.

In Campbell Scientific Africa (Pty) Ltd v Simmers [2016] 37 ILJ 116 at para 20 it was held that:

At its core, sexual harassment is concerned with the exercise of power and in the main reflects the power relations that exists both in society generally and specifically within a particular workplace.