Meesha Shafi’s sexual harassment complaint against Ali Zafar was dismissed a week ago by the provincial ombudsperson and the Punjab governor on the basis that Shafi does not have an 'employment relationship' with the entity against whom the complaint was filed i.e. JS Events.
Shafi and her team will now take their appeal to the Lahore High Court (LHC).
What does the ombudsperson and the governor's rejection mean? Is it a wrong decision that should be set aside by the LHC?
The law under which the complaint was filed — Protection Against Harassment of Women at the Workplace Act of 2010 — covers all forms of harassment in a workplace setting and imposes certain responsibilities on the employer to prevent, investigate and penalise instances of sexual harassment even if the person complaining of harassment is not an employee.
Timeline: The Meesha Shafi-Ali Zafar controversy
'Workplace' is defined very broadly under the harassment law to include “the place of work or the premises where an organisation or employer operates” and includes any place “where the activities of the organisation or of employer are carried out.”
The definition of the workplace is expanded even further to include “any situation that is linked to official work or official activity outside the office.”
While the 'accused' is defined to specifically mean an 'employee' or an 'employer' of an organisation against whom a complaint has been made, the definition of 'complainant' is not similarly restricted.
A person complaining of sexual harassment may be any “woman or man who has made a complaint to the Ombudsman or the Inquiry Committee on being aggrieved by an act of harassment.”
Further, the definition of 'harassment' does not limit the offence to actions taking place within the scope of employment.
It is defined as “any unwelcome sexual advance, request for sexual favours or other verbal or written communication or physical conduct of a sexual nature” that interferes with “work performance” or creates an “intimidating, hostile or offensive work environment.”
As stated earlier, the preamble of the law which sets forth the purpose of the legislation broadens the scope of the law to cover harassment that occurs in workplace settings without limiting it to harassment faced by employees.
It states that “it is expedient to make this provision for the protection of women from harassment at the workplace”.
The federal ombudsperson has used this line of reasoning when deciding a harassment complaint made by a student of Quaid-i-Azam University who was sexually harassed in 2012.
In that decision, the federal ombudsperson found that the harassment law is not limited to the employees of an organisation, and therefore even students in a university are protected by the law.
Even otherwise, the reasoning used by the ombudsperson and the Punjab governor to conclude that Shafi is not in an 'employment relationship' with JS Events is flawed.
They relied entirely on the literal terms of the contract itself to reach that conclusion, even though the harassment law should prevail over the contract in order to decide whether the harassment complained about is legally prohibited.
Neither an employer nor employee can relinquish their legal responsibilities under the harassment law through a contract.
If Shafi is found to be an employee as defined by the harassment law, her complaint would fall within the scope of the law in spite of a contractual clause disavowing an employment relationship.
In any case, whether or not she is an employee is not determinative, since the harassment law is not limited to harassment faced by employees only.
On a number of occasions, Pakistan’s courts have rejected employers’ claims that their contractual arrangements with employees absolve them from responsibilities under the law.
For example, in Enmay Zed Publications v. Sindh Appellate Tribunal (2001 SCMR 565), the Supreme Court held that a newspaper could not terminate its employee without good cause simply because its contract with the employee allowed it to do so.
Instead, the Court found that the requirements of the Newspaper Employees Act of 1973, which provides that an employee could be terminated only for good cause, prevailed over the terms of the contract.
The Sindh High Court has also held that “there is no concept of execution of agreement between workman and the employer by which the statutory rights of a workman could be diminished or taken away …” (Samiullah Sharif v. Fauji Oil Terminal and Distribution Company, 2007 PLC 464).
Legal precedent is clear that an employer cannot stand behind an agreement to deny employees rights guaranteed under the law.
The broad range of protections and remedies provided under the harassment law shows that it was intended to impose certain duties on employers to prevent sexual harassment in workplace settings.
Employers should not be permitted to circumvent their duties under the law by entering into agreements with employees who typically have much weaker bargaining power when negotiating such agreements.
Shafi claims that she was sexually harassed by Zafar while both of them were working for JS Events. If the alleged act of harassment took place in a setting where official work or activity was taking place in the course of a business run by JS Events, it falls within the scope of the harassment law.
As the employer, JS Events has the responsibility to investigate allegations of sexual harassment in such a setting, issue appropriate penalties to any of its employees who are found guilty of harassment and also take measures to prevent instances of harassment.
The LHC should find that the complaint falls under the scope of the harassment law and remand the case to the ombudsperson to examine the facts and decide the case on the merits.
If you're facing sexual harassment or other forms of gender-related abuse and want to seek help, you can reach out to: The Punjab Commission on the Status of Women, Social Welfare, Special Education And Women Empowerment Department, Madadgaar, and Digital Rights Foundation.
You can also share your story with us at email@example.com