High Court of Tanzania, Labour Chamber, Nicodemu Mwita v. Bulyanhulu Gold Mine, Review No. 12 of 2013, 15 November 2013
Tanzania, United Republic of
Dismissal , Protection against discrimination in employment and occupation , Sexual harassment
Use of international law as a guide for interpreting domestic law
Work of international supervisory bodies1
Sexual harassment/ Discrimination/ Dismissal/ Use of international law as a guide for interpreting domestic law
Mr. Nicodemu Mwita applied to the High Court to request a review of the arbitration carried out by the Commission for Mediation and Arbitration (CMA) of Shinyanga which had rejected his appeal for his dismissal to be declared substantively unfair. The claimant had worked for the enterprise Bulyanhulu Gold Mine as head of security until September 2011 when he was dismissed from his job. According to the enterprise, the employee had been dismissed because various other workers had spoken to Mr. Nicodemu Mwita to report his assistant for sexual harassment but Mr. Nicodemu Mwita did not taken any action and failed to inform his superiors of the matter. The employee argued that he had reported the sexual harassment suffered by various female workers to the police. The CMA arbiter that had heard the case ruled that Mr. Nicodemu was a participant in the chain of sexual harassment in the workplace because despite being aware of the harassment he allowed it to continue, a fact that constituted fair grounds for dismissal.
The Court agreed with the arbiter in the sense that Mr. Nicodemu Mwita’s assistant had been sexually harassing other workers and that the claimant had a duty to prevent this conduct from continuing, as well as reporting the matter to the enterprise. The Court deemed that the worker’s failure to report the matter could have affected the enterprise in the terms of Section 7 (4), (5) and (7) of the Employment and Labour Relations Act (ELRA) n.6 of 2004, which established that the employer had a duty to promote equal opportunities and eliminate discrimination, harassment being one form of such discrimination.
The Court then observed that:
“The term sexual harassment is not well defined in our laws of Tanzania. But in 1988 General Survey on discrimination in Employment, examining the application of Convention 111, Discrimination (Employment and Occupation) Convention 1958 No. 111, the ILO Committee of Experts on the Application of Conventions and Recommendations, listed a number of examples of Sexual harassment in employment applying to both men and women”.2
Likewise, the Court highlighted that sexual harassment had been recognized by Recommendation No. 12 of the Committee on the Elimination of Discrimination against Women (CEDAW) as a form of violence against women, and that CEDAW Recommendation No. 19 had defined some of the types of conduct that must be considered to be sexual harassment.
The Court, making use of CEDAW Recommendations Nos. 12 and 19 and the General Survey of 1988 of the ILO Committee of Experts to strengthen its decision based on the Employment and Labour Relations Act (ELRA), concluded that the fact that the claimant had not taken any measures to stop the sexual harassment from continuing and had not immediately reported the situation to the enterprise so that the relevant disciplinary action could be taken were valid grounds for terminating the claimant’s contract.