Employment law update – Employer’s liability for sexual harassment in the workplace

November 1st, 2017

Monique Jefferson BA (Wits) LLB (Rhodes) is an attorney at Bowmans in Johannesburg.

In Liberty Group Ltd v M (2017) 38 ILJ 1318 (LAC), an employee resigned from her employment and stated in her resignation letter that her employment had become intolerable due to ongoing and continued sexual harassment by her manager. The employee then instituted an unfair discrimination claim against her employer in terms of s 60 of the Employment Equity Act 55 of 1998 (the EEA).

The employee alleged that she was sexually harassed on four occasions. On the first occasion she confronted her manager directly and considered the matter to be resolved. On the second occasion the manager requested her to attend training, but when she arrived at the training she discovered that she was the only staff member attending. Her manager then made unwarranted comments to her, touched her body, massaged her shoulders and stood too close to her. She asked him to stop but he did not. On the third occasion he again asked her to attend training and assured her that they would not be alone. However, when she arrived at the training she found that she was alone again. He inappropriately touched her body and rubbed his body against hers and forced his tongue into her mouth. A further incident occurred when she was working late and he placed his hand on her leg moving it steadily up her leg. When she told him to stop, he laughed.

Initially the employee did not report the incidents of sexual harassment as she feared that she might lose her job or that the manager would take it out on her when appraising her performance. A few months later she escalated the issue to one of her other managers when having a discussion about her salary. She was advised to consult the employer’s sexual harassment policy and to lodge a complaint in accordance with the policy if she felt that the conduct warranted this. The manager also reported the incident to another person in human resources who tried to contact the employee and set up a meeting with her but this meeting never took place. Before submitting the complaint, her manager advised that he was aware that she had been in contact with human resources. She assumed that he was aware that she reported the sexual harassment and contacted the employee wellness call centre to ask for information regarding the submission of the complaint. She was told to refer the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA). The employer denied that this call took place as there was no call centre record of the call.

The employee then resigned. Her team leader contacted her and she told her team leader about the sexual harassment. She was urged not to resign so that the employer could deal with the matter and the employee consequently withdrew her resignation. However, in the two weeks that followed no steps were taken to investigate the complaint and the employee then resigned for the second time on 13 October 2009. Her manager was eventually suspended but this suspension was lifted as the employee refused to take part in the investigation as she was no longer an employee and had lost confidence in her former employer.

The Labour Court (LC) found the employer liable under s 60 of the EEA for failing to take reasonable steps to protect the employee from sexual harassment. In this regard, the employer should have taken steps at the earliest opportunity when the sexual harassment was brought to its attention. Instead, steps were only taken after the employee had resigned for the second time. The employer was ordered to pay the employee R 250 000 as damages. The employer appealed to the Labour Appeal Court (LAC).

The LAC referred to Potgieter v National Commissioner of the SA Police Service and Another (2009) 30 ILJ 1322 (LC) in which it set out the following requirements for an employer to be liable under s 60 of the EEA –

  • the sexual harassment complained of must have been committed by another employee;
  • the sexual harassment must constitute unfair discrimination;
  • the sexual harassment must have taken place at the workplace;
  • the alleged sexual harassment must have immediately been brought to the attention of the employer;
  • the employer must be aware of the incident of sexual harassment;
  • the employer must have failed to consult all relevant parties or take the necessary steps to eliminate the conduct;
  • the employer must have failed to take all reasonable and practicable measures to ensure that its employees did not act in contravention of the EEA.

As regards the requirement to report the sexual harassment immediately, the LAC found that this must be given a sensible meaning and must be determined with reference to the facts of each matter. In this case, the LAC was satisfied that the employee reported the incident within sufficient time albeit that it was not brought to the attention of the employer immediately.

The LAC found that from the time that the employee reported the matter to one of her managers and was referred to the policy, the employer should have ensured that the matter was investigated appropriately.  It was found that the LC correctly found that the steps required by s 60(2) to consult with the relevant parties and to take necessary steps to eliminate the alleged conduct were not complied with by the employer. Furthermore, no investigation was carried out until the second resignation letter.

The LAC per Waglay JP, Savage AJA and Phatshoane AJA found that the employer had failed to take all the necessary steps to eliminate the conduct complained of and failed to do all that was reasonably practicable under s 60(4) of the EEA. The appeal was accordingly dismissed.

Can an employer dispense with procedural fairness requirements in instances of serious misconduct?

In South African Medical Association obo Pietz v Department of Health – Gauteng and Others [2017] 9 BLLR 923 (LAC), the employee who was practising as a gynaecologist and obstetrician was summarily dismissed for insolence, insubordination and gross negligence after carrying out a caesarean section in an unprofessional manner, which allegedly led to the death of an unborn child. The employee was requested to give a full report of what had happened within 24 hours. He was dismissed the next day without a fair hearing and before providing the report. The employee accordingly referred an unfair dismissal to the Commission for Conciliation, Mediation and Arbitration (CCMA). The CCMA found that the employee had been grossly negligent, which warranted the dismissal. The CCMA commissioner found that the dismissal had been procedurally unfair as the employee was not given an opportunity to state his case but did not grant the employee compensation on the basis that the misconduct was serious, his actions had violated the patient’s Constitutional rights, the employee had failed to show any remorse, and he had been given an opportunity to explain his actions in a report but failed to do so.

The employee then approached the Labour Court (LC) to review the arbitration award on the basis, inter alia, that no compensation had been awarded for the procedural unfairness, the commissioner failed to properly consider the evidence and reached a decision that no reasonable commissioner could have reached.  The LC found that it was a decision that a reasonable decision maker could make and dismissed the review application.

On appeal, the Labour Appeal Court (LAC) found that the dismissal was substantively fair due to the severe nature of the misconduct. As regards procedural fairness, the employer argued that the conduct warranted summary dismissal and that holding a drawn out disciplinary hearing in such circumstances would be a waste of taxpayers’ money.

The LAC held that the dismissal had been procedurally unfair and that the commissioner must exercise a value judgment when determining whether to grant compensation. It was held that compensation for a procedurally unfair dismissal is a solatium and given the employer’s unfair conduct and the fact that the audi alteram partem rule was not give effect to, the employee should have been granted some compensation. While the employer was given an opportunity to submit a report, he was dismissed before this report was provided. The LAC found that the commissioner’s discretion in deciding not to grant compensation was based on issues of substantive fairness without having any regard to the fact that due process was not followed. The LAC was of the view that that this was the incorrect approach as denying an employee the right to due process is a breach of the Constitutional right to fair labour practices. The employer was accordingly ordered to pay compensation equal to three months’ salary.

This article was first published in De Rebus in 2017 (Nov) DR 37.