Friendly touch...
or sexual harassment
by Joannah Bharose, Port of Spain- Trinidad
In a landmark case, the Trinidad and Tobago Industrial Court upheld the decision of Republic Bank to dismiss an employee who sexually harassed three colleagues.
This is the first case on sexual harassment to go as far as
the Industrial Court in this country and probably even the English
speaking Caribbean. Dell Mohess, an auditing assistant at Republic
Bank for 25 years, was fired on July 1, 1994, after the Bank investigated
allegations by three female employees that he had sexually harassed
them. The Bank Employees' Union (BEU) challenged the dismissal
of Mohess contending that his action did not amount to sexual
harassment and his dismissal was an inappropriate punishment under
the circumstances.
Mohess, through the legal support provided by the Trade Union, claimed that he was being singled out to be an "example" and was therefore receiving unusually hash treatment from his employers. His lawyers demanded that the court direct Republic Bank to reinstate Mohess and compensate him. But, Judges Cecil Bernard and Fitzroy Regis dismissed the application of the BEU, which was represented by attorney Douglas Mendes. Republic Bank was represented by Senior Counsel Martin Daly.
The case was first represented in the court about one year ago and according to a BEU official they are now exploring their options. This includes the possibility for further legal action. The court referred to the legislation in other countries like Canada, pointing out that Trinidad and Tobago has no corresponding legislation on sexual harassment.
In providing the rationale for its decision, the court advised: "It is therefore left largely to employers to establish a reasonable framework for addressing problems associated with sexual harassment at the workplace. The unions, too, have an obligation to their members to work towards elimination of these problems. It is to be hoped that until Parliament enacts legislation, the parties would find it possible to co- operate in the formulation of an appropriate policy on the subject."
The legislation may have solved this particular case, but the issue still remains. That is, proper legislation and procedures are required to deal with cases involving sexual harassment in the workplace. According to BEU General Secretary, Patrick Rambathaly, the union has been trying for years to get the companies to institute a method of dealing with situations like these.
"The dismissal was extremely harsh for Mohess, an employee of 25 years with an unblemished record. Assuming, but not accepting that these events took place, the Bank did not consider alternatives," says Rambathaly. "They never issued a warning. That should be the normal procedure. The degree of repeated misconduct must be considered. Even a suspension would have been acceptable. Like many other companies they had no method of dealing with the situation."
David Radix, Republic Bank's Industrial Relations Manager, said they dealt with the situation as they would any other incidence of gross misconduct. But Rambathaly's response was, "In 1991 when officials were informed of the first incidents, he was never warned. The complaints may not have even reached the head office. They ignored the problem and then used it as evidence. The bank should have addressed the issue in the early stages." Rambathaly condemned the Bank's way of handling the situation: "Their policy on sexual harassment is just a policy until a method is implemented alongside it. They did not even consider private arbitration. A lot of lives have been affected by the incident, this includes Mohess' family.
"This was a ground breaking case and Mohess was used. The degree of misconduct was not considered," he said. BEU has about 1,700 members, of which 95 percent are from the banking sector. About 80 percent of the membership are women. "We don't have many cases involving sexual harassment. Women today are more confident and capable of handling the situation. We do not condone sexual harassment and sometimes I wish the cases die before they come to my desk. If the Bank had a method in place this could have been handled in the early stages. And as a union representing workers, we will not tolerate sexual harassment."
He also pointed out that because of the lack of a proper procedure in the company and proper legislation to guide the court in matters of sexual misconduct in the workplace, many innocent remarks and actions can easily be mistaken for harassment. Rambathaly cited a handbook on sexual harassment prepared by the National Insurance Board for their own employees, which could be used as a model for other companies. The handbook outlines the purpose, policy, procedures, official report of harassment, investigation of the complaint, proceedure at hearings and disciplinary action.
BEU's attorney, Mendes, submitted that good industrial relations practice would dictate a system of progressive disciplinary measures in which dismissal is not a first option for an employee like Mohess, with an unblemished record over a period of 25 years. Mendes argued that a warning followed by suspension should be the usual sequence of disciplinary measures. It was a means of offering to the worker in question an opportunity to mend his ways. An employer should not resort to dismissal unless he concludes that after offering such an opportunity, that the worker could not be rehabilitated.
In his presentation, Mendes reminded the court that it would be necessary in assessing the seriousness of Mohess' conduct, to focus on whether there was a pattern of behaviour which indicated frequency and regularity of harassment of "Ms M." In that regard he submitted that even if the allegations were believed, the lapse of some eighteen months between the Frederick Street incident and the Independence Square incident would negate any contention of regularity and frequency of conduct over a short period of time. But according to the Bank's Industrial Relations Manager David Radix, after the investigation there was no doubt, since four incidents were uncovered involving three employees.
Radix also said: "More than 75 percent of the staff at the Bank are women. And you always hear, via the 'grapevine' of instances of sexual harassment, but nobody has ever come forward with an official complaint, willing to follow through. For the first time someone was willing to go the distance." Mohess was based at the Company's Frederick Street Branch. He was responsible for inspecting other branches to ensure compliance with the Company's lending procedures. He visited most of the branches in the course of his work. In order to protect the identity of the victims they were identified only as Ms M, Ms P and Ms R in the court documents. The initial complaint came from Ms M and in the course of the investigation other incidents involving Ms R and Ms P were uncovered. Sometime in May 1994, Ms M complained to supervisors at the Bank's Independence Square branch that Mohess sexually harassed her. She said Mohess requested some files, which were kept in the filing room and she went to get them. While she was standing on a stool looking for the files, Mohess entered the room.
Mohess inquired how she was and Ms P said she was okay. She said he then put his left arm around her waist "and kind of squeezed, pinched, wriggled and patted it, while they were in the filing room together. Before she could say anything he pulled her across to him and kissed her on the cheek." According to Ms M, this was the second time an incident like this occurred within 18 months, between herself and Mohess. The first took place while she was at the Frederick Street branch lying on a couch in the ladies' common room. Mohess entered the room, came up behind her and put his hand on her waist and slapped her on the bottom. She sat up bolt upright on the couch. He sat next to her and made some chit- chat at the same time putting his hand on her calf. Running his hand down her calf, feeling it, he commented on its size and sexiness. She flew off the couch, grabbed her bag and left the room. She told two colleagues, a clerk and a loans officer, about the incident. The other female employees were not called to testify.
According to the judgement document: "Sometime in 1991, Ms R and Ms P reported to a senior supervisor at the Company's Centralised Securities Unit, that the Worker (Mohess) had uninvited physical contact with them." The court document stated: "Ms R's allegation was that the Worker had touched her on her bottom, commenting at the same time on her physical condition. Ms P had alleged that the Worker had touched her on the hips while they were in the kitchen at the Company's Centralised Securities Unit." Mohess was called in and matter was discussed with a supervisor. On June 1994, the Bank, via letter, asked Mohess to comment on the allegations.
An excerpt from Mohess' letter of response stated: "Ms R's allegation has truly shocked me. I know that I often praised and sometimes joked with her on her determination and dedication to her gym workouts. I never dreamt that she was repulsed by my/our jokes/discussions. I may have, in jest, touched her on her bottom complementing her on her efforts and their results." He referred to "results" in relation to efforts at the gym - "firm solid body." While under cross examination, Mohess said: "If I touched her on the bottom it was a joke. I may have said 'ah you solid!' I can't remember if I extended this compliment once or more than once, I can't remember if anyone else was present when I touched Ms R's bottom. She is part of the family unit. I can't remember if any other member of the family unit was present."
According to the judgement document, while dealing with the allegation of the other two employees, Ms R and Ms P, Mohess said that he had known them for a few years and they joked in groups. He said he had a close rapport with them like brother and sisters. If they had objections to any aspect of his conduct, he would have expected them to express such objections to him. After their allegations were drawn to his attention in 1991, he kept his distance and has not spoken to them since.
Mohess explained his behaviour in relation to Ms M as a kiss in appreciation. It was common among the Company's employees. He was surprised that Ms M regarded its as sexual harassment. He said if there had been any complaint about his behaviour he would have reduced his contact with the women to a minimum. He would have stopped dealing with them and would have dealt with other members of staff. Daly's submissions focused powerfully on Mohess' failure to make any proper apology for his conduct.
The major issue for the court was to consider that Mohess had admitted contact with three female staff members and determine
The court stated: "As far as we are aware, this is the first case coming before the court in which sexual harassment has been the central theme. For that reason we could find no assistance in the jurisprudence of the court. We have benefited from an examination of Canadian cases earlier referred to. While those cases are of persuasive authority, we recognize that this Court is under a duty to take into account those peculiarities of the Trinidad and Tobago society which may find expression in the workplace and which could influence us in a direction different from that taken by foreign courts and tribunals.
"As an example, we recognize that in certain sections of the society and in certain types of employment, "picong" can be rough and commonplace, so that what is said in Canada may not necessarily have the same effect if said here. The term "sexual harassment" does not define a precise "offense." "Sexual harassment is not an offense Sui generis. It is merely an aspect of sexual misconduct which has attracted popular attention and is non- neutral and somewhat emotive nomenclature."
"We wish to state, so that we give some guidance to those in the workplace who may labour under any misconception, that the assessment by a perpetrator of sexual harassment of whether his or her conduct amounts to sexual harassment is not a relevant consideration. It is not relevant what motivated his or her conduct or what intention accompanied it. What is relevant is whether the conduct is voluntary on his or her part, whether it is uninvited on the part of the victim and whether it is unwelcome by that victim.
Present those elements, sexually oriented conduct amount to sexual harassment. "In this case the employer is a commercial bank. It is reasonable that such an establishment would expect, if not demand, a level of behaviour among its staff such as would inspire public confidence in its customers. There is a common law obligation on an employer to provide for his employees a safe system of working. In the modern commercial office that obligation may well not be limited to the provision of a workplace and a system which protects the employees against physical harm.
That obligation may well extend to the provision of a work environment which is free from the threat or the application of sexual coercion by one employee towards another." The court also agreed with Mendes when he submitted that any type of harassment of one worker by another is misconduct and should be visited with disciplinary punishment, but that the ultimate sanction of dismissal should not be automatic. In every case of dismissal that comes before the Court it must apply certain principles in its assessment of the reasonableness of the employer's decision to dismiss. Radix said the other employees of the Bank have been supportive of the Bank's decision and that there was evidence that Mohess' behaviour had been going on long before it was officially reported.
When asked whether Mohess was made out to be a scapegoat and used as an "example," Radix replied: "I disagree. He was not used as an example. We dealt with it as we would have with any other matter of gross misconduct. "Management is committed to eliminating this type of behaviour from our environment, and will take every step possible to protect our staff from it." In urging staff members who felt they were being harassed to come forward, Radix said, any staff member who feels he/she has been the victim of sexual harassment should report the incident to his or her supervisor or manager, or where appropriate, to the Managing Director's Assistant (Human Resources), the deputy managing director or the Managing Director without any fear whatsoever. The incident will be fully investigated and appropriate action taken.
"We hope now that there is awareness and that employees who are victims know that there is no need for fear. From an "image" point of view, this will enhance the Bank's reputation as a credible employer."
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