What to do to nullify the dismissal of a victim of sexual harassment?

Sexual harassment in the context of labour relations is any conduct with a sexual connotation or any other conduct based on sex that the perpetrator knows or ought to know affects the dignity of a person, when one of the following situations exist:

• the behaviour is unwanted, untimely, abusive and hurtful to the person who is subjected to it;
• the fact that a person refuses or accepts such conduct on the part of an employer, employee, customer or supplier is used explicitly or implicitly as the basis for a decision affecting that person’s rights in respect of vocational training, employment, job retention, promotion, salary or any other employment-related decision;
• such conduct creates an intimidating, hostile, degrading, humiliating or offensive environment for the person subjected to it.

The targeted behaviour may be physical, verbal or non-verbal.

The employer and the employee must refrain from any act of sexual harassment during the work relationship, as well as any customer or supplier of the company.

Furthermore, employers are obliged to ensure that any sexual harassment of which they are aware ceases immediately.

Under no circumstances may measures to stop sexual harassment be taken to the detriment of the victim of the harassment.

An employer is still obliged to take all necessary preventive measures to ensure the protection of the dignity of every person in the course of employment relations. These measures must include steps taken to provide information.

An employee shall not be subject to retaliation for protesting or refusing to accept sexually harassing conduct or behaviour by the employer or any other supervisor, co-workers, or outsiders connected with the employer.

Similarly, retaliation may directed against no employee for reporting or witnessing sexual harassment.

Any provision or act contrary to the foregoing, in particular any termination of the employment contract in violation of these rules, shall be null and void. This nullity must nevertheless be invoked by the employee concerned before the competent court.

Thus, in the event of dismissal, the employee who is the victim of the dismissal may petition the Chief Judge of the Labour Tribunal within fifteen days following notification of the termination, who shall rule as a matter of urgency, that the dismissal be declared null and void and that the employee’s employment be maintained or, where applicable, that he or she be reinstated in the company.

The order of the Labour Tribunal may be appealed within forty days of notification through the Court Clerk and the appeal shall be brought before the presiding magistrate of the Chamber of the Court of Appeal to which appeals in labour law matters are assigned.

The same protection applies to employees who have testified to such sexual harassment.