The amount construction company Mota Engil Engenharia Construcao Africa, SA, will have to pay to “TK”, has yet to be determined.
But the company got a severe tongue-lashing from Judge Michael Tembo for failing to protect her from the unwanted advances from general foreman Joaquim Carvalho who, she said, would forcefully touch her, make vulgar and explicit comments and once opened his zipper and suggested that she give him oral sex.
TK was employed as a “timekeeper” at the company. It was her job to visit sites to log hours of employees.
To do so, she had to travel with Carvalho.
In her evidence, she said in September 2016, Carvalho proposed to be in a relationship with her. She refused.
“He then started using his authority to sexually abuse me by touching her private parts when I got into his car.
“I reported the issue to the company but nothing changed,” she said, naming four managers who she reported the issues to over the months.
In November that year, she finally had enough.
She said on the way to a site inspection he parked the car, locked the doors and attempted to undress her and kiss her. He took out a knife and tried to rip her trousers off.
She fought back and was crying. When they got to the site, she went straight to report the incident to the site manager. Staff there said she was wasting her time because the company would not do anything.
She then reported the matter to the overall project who “casually told me to write up a report”.
A company manager testified that he had only become aware of what was going on when she filed a complaint in early December 2016. About a week later Carvalho resigned and left Malawi.
TK’s claim was for damages for the injury to her dignity as a woman, emotional and psychological trauma as a result of the negligent failure of the company to curb sexual abuse at the hands of one of its employees, who was her senior.
The company denied being negligent.
Among its arguments were that Carvalho was responsible for his own conduct and the company would only be responsible for conduct relating to his work.
It also denied that she had reported the issue to the company until December 2016, just before Carvalho resigned.
In the alternative,the company claimed that the conduct complained of “was consensual”.
But Judge Tembo found that the company had failed to ensure her safety and welfare by not having a proper and effective system in place for handling such complaints.
“It had a duty to act on her complaints but failed to do so,” he said.
“It let it go on for months.”
The Judge rejected the proposition from the company that she could not claim for damages where there is no physical injury, only psychiatric injury.
“The claim for aggravated damages succeeds. This is considering that she was left to suffer for several months after initially reporting the offensive conduct. Ordinary compensation will not be enough in these circumstances. The damages must be assessed on an aggravated basis to cater for the exacerbated distress. Psychiatric evidence must be adduced, he said, ordering that damages and costs must be assessed by the registrar of the court if not agreed to by the parties.”
To join Africa Legal's mailing list please click here