The Protection against Harassment of Women at the Workplace Act (the 2010 Act) came with the promise to offer a civil alternative for victims of harassment at the workplace, not just in terms of the penalties and the procedures but also in terms of the forums that a victim would feel comfortable accessing.
Accordingly, an elaborate scheme was envisioned under the 2010 law that empowered the victim to make key decisions related to their complaint. From choosing whether to make an informal complaint or to file a formal complaint to deciding whether to proceed with the internal inquiry committee within the organisation or to initiate proceedings externally at the Ombudsperson’s office established under the 2010 Act, the victims were empowered to take these decisions for themselves.
Even appeals were to be heard by non-traditional and/or quasi-judicial forums such as the ombudsperson and/or the governor/president, as the case may be. The law also required that the management of an organisation designate a ‘competent authority’ for the purposes of this law.
These civil alternatives were provided to ensure that the law catered not just to the substantive protections against unwelcome sexual advances and demeaning attitudes based on gender but also laid the foundation of procedures and forums which were more accessible to victims. The primary objective was to ensure that the law could be effectively accessed by those it seeks to protect, offering them flexibility and options tailored to their individual circumstances.
The internal inquiry committee that the law mandates every organisation to constitute must also have balanced representation in its composition. At least one of the three members of such a committee must be a woman, one from senior management, and one a senior representative of employees or a senior employee, where there is no Collective Bargaining Agent. It even allows organisations to co-opt women from outside the organisation, where required, to ensure that the committee's composition is not all male.
The qualifications of the ‘competent authority’, on the other hand, are not mentioned in the law, which is a gap that needs to be fulfilled. However, the overall reading of the Act suggests that the ‘competent authority’ ought to be someone within the organisation who will have the ability to implement and impose one or more of the penalties recommended by the inquiry committee on the accused should the inquiry find him guilty.
Regarding the inquiry committee and the ombudsperson, they have similar roles and powers under the Act, although minor differences exist. Broadly speaking, they share the primary responsibility of inquiring into complaints of workplace harassment. When the case is initiated with them, they serve as the first instance for hearing the complaint, as well as the response of the accused, along with examining the evidence and witnesses, if any. They can also summon and enforce attendance of any person and examine him on oath; require the discovery and production of any document; receive evidence on affidavits; and even record evidence.
Both the inquiry committee and the ombudsperson are supposed to follow procedures rooted in principles of natural justice. They are to conduct a fair trial, allowing both parties and their witnesses to be heard, perusing the record and any oral or documentary evidence, and allowing the parties to cross-examine the witnesses against each other.
Having gone through this entire process, the ombudsperson arrives at his or her decision. At the same time, the inquiry committee submits its findings and recommendations to the ‘competent authority’ for imposing one or more of the penalties as given in the law, if it finds the accused guilty.
Section 4 (4) of the 2010 Act is very clear in its wording that the recommendation that the inquiry committee is to make to the competent authority if it finds the accused guilty shall be for imposing one or more of the minor or major penalties that are listed in the law. This shows that the only scope and discretion that a competent authority has is to the extent of choosing one or more of the penalties listed in the law. If the competent authority could trump the inquiry committee on anything beyond choosing the penalty, it would render the entire exercise of conducting the inquiry redundant which appears to go against the scheme of the Act and its objective.
Section 4 (5) of this law further substantiates this point when it states that the competent authority shall impose the penalty recommended by the inquiry committee under sub-section (4) within one week of the receipt of the recommendations of the inquiry committee. In this way, it makes the competent authority time-bound to implement the recommendation of the inquiry committee.
Further, Section 6 provides for “Appeal against minor and major penalties” and goes on to talk about the right of appeal that an aggrieved party has against a ‘decision’ of the competent authority on whom a minor or major penalty is imposed. The word ‘decision’ in this section pertains to the type and kind of penalty to impose and does not appear to suggest that the competent authority has any broader powers beyond imposing penalties under this Act. To hold otherwise would be to defeat the entire purpose of the Act.
Section 9 of the Protection against Harassment of Women at the Workplace (Filing and Disposal of Complaints) Rules, 2013 (the 2013 Rules) also states that on receipt of recommendations and findings of the inquiry committee or the ombudsman, the competent authority shall, within one week impose the penalty recommended by the inquiry committee or otherwise refer the case back to the inquiry committee with their observations to be addressed immediately. This indicates that they can either impose the penalty as recommended or refer the case back to the inquiry committee with their observations. They cannot, in and of themselves, override the findings of the committee.
Accordingly, the role and scope of the competent authority in this law must be read in this context together with the sections cited above in their entirety. Phrases out of these sections should not be nitpicked to read into law any broader role and scope for the competent authority than is envisaged in the law.
In fact, under Section 4 (6) it is the inquiry committee whose role extends beyond the submission of the findings and recommendations to the competent authority. They have an active role and duty to meet and monitor the implementation of their recommendations, subject to any decision made by the competent authority and the appellate authority. This ‘decision’ of the competent authority, as mentioned above, is not a blanket power for them to disregard the findings of the inquiry committee; rather, it pertains only to the limited scope of choosing whether to impose a minor or a major penalty.
They have no authority to veto the inquiry committee’s findings as to guilt or innocence of the accused as they are not an appellate forum. Only the appellate authority may, on consideration of the appeal and any other relevant material, confirm, set aside, vary or modify the decision within thirty days in respect of which such appeal is made under Section 6 (3) of the Act, which in this case would be the ombudsperson or the governor/president.
If the legislature so wanted, they could have expressly stated that the competent authority could also do so, but in Section 6 (3), they only reserve that for the appellate authorities, which in this law are the ombudsperson and/or the governor/president and not the competent authority.
The Protection against Harassment of Women at the Workplace Act was passed in 2010 with the objective that a safe working environment for women would lead to increased participation of women in the labour force and towards fulfilment of their right to work with dignity under the Constitution of Pakistan 1973. That a safe and harassment free work environment was inherent in the fundamental right to dignity under Article 14 of the Constitution of Pakistan was also upheld by the Supreme Court of Pakistan in Raja Tanveer Safdar v Tehmina Yasmeen & Others (P L D 2024 Supreme Court 795).
The statement of objects and purpose of the 2010 Act states that “this Act requires all public and private organisations to adopt an internal Code of Conduct and a complaint and appeals mechanism aimed at establishing a safe working environment, free of intimidation and abuse, for all working women”.
This shows that not just the work environment but the complaints and appeals mechanism must also be free of intimidation and abuse. It is hoped that organisations will implement this law with clarity and responsibility, in the same spirit as its objectives and purpose.
The writer is a diversity and inclusion advocate. She has a law degree and an LLM in Law & Development and can be reached at: nida@learnpak.com.pk
