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Committee considering $3-m fine for sexual harassment

THE joint select committee of Parliament currently reviewing the Sexual Harassment Bill has been considering increasing fines for breaches of the legislation from a maximum $1 million to $3 million.

However, committee members had raised concerns that a limit of that size may not prove to be the deterrent that they would wish for employers who choose to ignore the ruling of a tribunal which will eventually handle the complaints.

Government Senator Kavan Gayle felt that the increased cap should be a much more effective warning to employers who refuse to carry out the orders of the tribunal in dealing with sexual harassment of their staff or customers.

“It is necessary, where the employer fails to fulfil his obligations under the Bill, to take immediate and appropriate action to deal with sexual harassment of a worker, where the employer becomes aware of sexual harassment,” Senator Gayle argued.

“I think the most egregious breach of the legislation is for not taking action to address the problem. If the employer fails to take the necessary steps or the appropriate actions where a complaint has been received, that failure would be the most egregious act of all: A report was made to you and you do absolutely nothing about it!” he exclaimed.

Committee members felt that the increase should send a clear message to employers that there is a zero-tolerance approach to harassment and the committee is serious about the matter.

Solicitor General Marlene Aldred advised the committee that in any court, the penalties could not exceed $5 million. But, she said there is a mechanism within the Bill which would allow for the fine to be increased by the minister.

Olivia Grange, the minister with responsibility for gender affairs, eventually agreed that it could be raised to $3 million and further increased over time.

But another Government member of the committee, Senator Saphire Longmore, cautioned that small businesses should be protected from an increased cap, which could bankrupt the owners. She suggested that the cap be lifted to $3 million for corporate bodies, and that the $1-million cap be retained for small businesses making $500,000 or less, to protect them from going under.

“A million-dollar fine might not mean anything to a body corporate, and only the publicity would affect them. So, in my mind, there should be some relationship between fine and the size and wealth of the employer,” she added.

The committee also had lengthy discussions about the importance of mediation up to the tribunal level.

Senator Gayle, a trade unionist, agreed that the possibility of mediation should be retained throughout the process, considering that the matter developed within a workplace or an institution.

“Remember, in a workplace environment you want to have harmony, but the situation may ignite the relationship between co-workers and between employers and employees, where it becomes intolerable and may lead to other disputes. So, the option of mediation can save the relationship,” he noted.

In a discussion on landlord-tenant relationships, it was revealed that a harassment policy had been developed in 2008 and sent to the Cabinet in 2011 with the rules of engagement in these relations. Copies of the policy were circulated to committee members, showing that the rules laid down in the policy statement included suggestions that mediation should be attempted as a first step, and at every step afterwards, before the issue is referred to the tribunal.

The Bill states that the tribunal, in making an award by way of a direction for payment of compensation to a complainant, should take into consideration “injury to the complainant’s feelings, or humiliation suffered”.

It added that where the tribunal makes an award, by way of a direction for the payment of compensation to the complainant, “the sum so payable may be recovered by the complainant summarily in the court, without limit of amount, as a civil debt”.

“A respondent who fails to comply with an award from the tribunal commits an offence and shall, on summary conviction in a parish court, be liable to a fine not exceeding one million dollars or, in default of payment thereof, be liable to a term of imprisonment not exceeding three months,” it states.

It added that a decision, or an award, of the tribunal shall be binding on the complainant and the respondent appearing before the tribunal, and shall take effect from such date as may be specified in the order, having regard to the circumstances of the case.

However, any person who is dissatisfied with any decision or award of the tribunal may appeal to the Supreme Court.

Grange told the Jamaica Observer after the meeting that, while there will be need for further meetings to complete the review process, the report to Parliament would definitely be ready for tabling in the first quarter of the new fiscal year, which begins on April 1.

She noted that the deliberations have now hurdled the first 34 of the 44 clauses included in the Bill.

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