Numerous Nigerian laws protect employees' rights in the workplace (for further details please see "Towards a better workplace: curbing sexual harassment"). In 2013 the National Industrial Court (NIC) enriched this jurisprudence, particularly as with regard to workplace sexual harassment, in Ejike Maduka v Microsoft.(1) Through this judgment, the NIC ushered in a new labour law regime with regard to workplace sexual harassment as – in addition to holding the sexual harasser liable – it held the employer vicariously liable for acts of sexual harassment perpetrated against one of its employees.
Until the termination of her employment, Ejike Maduka (the applicant) had been the enterprise marketing manager of Microsoft Nigeria Ltd (the first respondent), which was the Nigerian subsidiary of Microsoft Corporation (the second respondent). The applicant claimed that her termination could be traced to her refusal to succumb to sexual advances from her immediate boss, Mr Onyeje (the third respondent), who was the country manager and CEO of Microsoft Nigeria Ltd. Consequently, the applicant filed an action under the Fundamental Human Rights Enforcement Procedure Rules, requesting the NIC to declare that her termination for refusing to succumb to Onyeje's sexual advances constituted a blatant infringement of her rights to dignity and freedom from discrimination as guaranteed by:
- Sections 34 and 42 of the Constitution 1999 (as amended); and
- Sections 15 and 19 of the African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act.
In its reply, the second respondent asked the court to strike its name from the case on the basis that it:
- was a separate and distinct legal entity from its Nigerian subsidiary; and
- had not directly ordered the applicant's termination.
First, the NIC relied on the principal-agency relationship between a principal and subsidiary employer to hold that:
- the first and second respondents had co-employer status; and
- the second respondent was answerable to the applicant's claims.
Subsequently, the NIC found that the applicant's allegations that the third respondent had consistently tickled and touched her and other female workers in the office against their will and despite their protests had been proved by the evidence tabled before it. The NIC further declared that the sexual harassment of the applicant had infringed her fundamental right to dignity and freedom from discrimination. Notably, the NIC also held the first and second respondents liable for damages for having failed to take the utmost care to ensure the claimant's fundamental right to freedom from discrimination and degrading treatment in the workplace. As such, the NIC found all of the respondents severally liable for damages of N13,2 million.
Matters arising from Microsoft
Microsoft brings to the fore a labour law issue on which Nigerian legislation and case law at the date of the judgment were silent. Notably, the Labour Act and other Nigerian labour laws do not include specific provisions on workplace sexual harassment. However, the Constitution (as amended) confers on the NIC jurisdiction over matters connected with or pertaining to the application of any international convention, treaty or protocol ratified by Nigeria with regard to labour matters. In the celebrated case of Aero Contractors Co of Nigeria Limited v National Association of Aircrafts Pilots and Engineers,(2) the NIC endorsed the use of labour-related international conventions which have been duly domesticated and ratified by Nigeria pursuant to Section 12 of the Constitution. Pursuant to its powers in this regard, the NIC applied the United Nations Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) and the International Labour Organisation Discrimination (Employment and Occupation) Convention 1958 to determine the remedies to award the applicant in Microsoft.
Further, the NIC relied on Recommendation 19 of the CEDAW, which stipulates that:
it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruiting or promotion, or when it creates a hostile working environment.
The NIC also relied on:
- a Canadian case, in which it was held that sexual harassment is a form of sexual discrimination banned by the human rights statutes of all Canadian jurisdictions; and
- an Indian Supreme Court judgment, which held that a right against gender discrimination is a universally recognised basic human right.
It was against this background that the NIC concluded that the termination of the applicant's employment for her refusal to succumb to the sexual advances of the third respondent was:
- an act of gender-based discrimination; and
- an abuse of her right to dignity.
Mircrosoft has undoubtedly laid the foundation that in certain circumstances, employers may be held vicariously liable for workplace sexual harassment. In this case, the first and second defendant argued that the employers had an anti-harassment and anti-discrimination policy and complaint procedure to address workplace sexual harassment. Further, the court noted that when the second respondent had learned of the allegations of sexual harassment in its Nigerian company, it had launched an investigation in the United States. However, according to the court, there was no evidence that the applicant had been invited to be interviewed regarding her allegations. Further, the court received no evidence of the outcome of the investigation. It was therefore apparent that the second respondent's refusal to conclude investigations into the alleged case of sexual harassment in its Nigerian subsidiary had rendered it and the first respondent liable for the acts of the Nigerian CEO. In particular, the court held that through:
the inaction and silence of the 1st and 2nd Respondent, they both tolerated and ratified the 3rd respondent's conduct which is against their policy of prohibition and non-tolerance of sexual harassment, gender discrimination and retaliatory action. I hold that they are both in breach of their duty of care and protection to the applicant and are vicariously liable for the acts of sexual harassment carried out by the 3rd respondent within the apparent scope of authority they entrusted to him.
Based on the NIC's decision in Microsoft, employers which learn of workplace sexual harassment and take no administrative decision to investigate it may be liable for breaching their duty of care to their employees by failing to protect their fundamental rights. Microsoft is a watershed moment for women's workplace rights under Nigerian law. It is also a call for employers to create policies and implement mechanisms that will effectively and robustly address cases of sexual harassment in their workplace in order to avoid being caught in a web of liability brought about by failing to act. It is time that employers understood that they have a duty to provide their employees with a workplace which is free from toxicity, including sexual harassment.
Endnotes
(1) Unreported Suit NICN/LA/492/2012, 19 December 2013.
(2) [2014] 42 NLLR (Pt 133) 664 NIC.
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