Eliminating sexual harassment in the workplace – #TimesUp for employers

April 1st, 2023

Picture source: Gallo Images/Getty

By Mmathabiso Khalema

Holmes JA in S v Snyman 1968 (2) SA 582 (A) likened complainants in sexual assault cases to accomplices in crime and described them as having a ‘deceptive facility for convincing testimony’. This statement was made to justify his support for the application of the cautionary rule, which was premised in the belief that, ‘women are habitually inclined to lie about being raped’ (S v J 1998 (2) SA 984 (SCA)). Historically, there has been a culture of labelling women as vindictive when they speak out against gender-based violence. Recent developments in case law and legislation on sexual harassment serve as an indicator that the time for that culture, may well be up. This article briefly traces the development of sexual harassment jurisprudence through court cases, discusses the legal framework on workplace sexual harassment, and underscores the importance of having a sexual harassment policy as a critical part of an employer’s operations.

Early development in what constitutes sexual harassment

The early jurisprudence in sexual harassment cases in South African courts, mostly involved employees who were dismissed for sexually harassing co-employees. Many of the cases dealt with whether the alleged harassers had been unfairly dismissed and whether their conduct constituted sexual harassment. From there the courts established one of the foundational principles, namely that a single incident is sufficient to amount to sexual harassment. The theme of a power differential between perpetrator and complainant also features in the earlier cases.

The case of J v M Ltd (1989) 10 ILJ 755 (IC) is often referred to as the first ever reported case on sexual harassment in South Africa (SA). In this case, the court upheld the dismissal of a senior executive employee who was asked to resign after being found guilty of sexually harassing several of his female co-workers. Here, the court described sexual harassment as ‘unwanted sexual attention in the employment environment’. Although there was no legislation at the time, which dealt specifically with sexual harassment in the workplace, the court recognised the devastating effect that sexual harassment has on its victims. It commented that sexual harassment violates the right to bodily integrity and personality, and that it ‘creates an intimidating, hostile and offensive work environment’. The court also established that a single incident could constitute sexual harassment.

Also heard in 1989, was Mampuru v Putco (IC) (unreported case no NH11/2/2136, 24-9-1989) in which the Industrial Court held that the dismissal of an employee who had been dismissed for sexually harassing his female co-workers was fair. The dismissed employee apparently ‘had an “intimidating attitude” towards female employees, thus frightening them into not complaining for fear that they would be dismissed’ (D Zalesne ‘The effectiveness of the Employment Equity Act and the Code of Good Practice in Reducing Sexual Harassment’ (2001) 17 SAJHR 503).

The Campbell Scientific Africa (Pty) Limited v Simmers and Others [2015] JOL 34906 (LAC) case involved a once-off incident, which occurred on a business trip outside office hours. The Labour Appeal Court (LAC) found that although the parties were not direct co-employees, and the incident was a once-off, Simmers had violated the complainant’s right to equality by making unwelcome advances towards her in the workplace. It found that there was a power differential based on Simmers’ age and gender. The LAC stated that it wished to communicate the seriousness of sexual harassment and the fact that it will not be tolerated and will be met with the harshest penalty.

Vicarious liability and the employer’s duty to provide a safe working environment

In Grobler v Naspers Bpk en ’n Ander (2004) 25 ILJ 439 (C) the common law concept of vicarious liability made its way into the sexual harassment jurisprudence. Grobler was sexually harassed by her immediate supervisor while employed by Naspers. She suffered an emotional breakdown and as a result could no longer work. She instituted a claim against her employer in the High Court, claiming that the employer had failed to provide a safe working environment and was thus vicariously liable for her supervisor’s actions and the damages she suffered. On appeal in Media 24 Ltd and Another v Grobler [2005] 3 All SA 297 (SCA) the court confirmed that an employer is required to take reasonable measures to prevent sexual harassment and if there is a failure to provide such protection, the employer will be liable to compensate a victim for harm suffered. The Supreme Court of Appeal held that in terms of the common law, employers owe their employees a duty of reasonable care for their safety, which duty not only extends to physical safety, but also psychological harm, which may manifest itself in the form of sexual harassment. Time and again, employers who are found lacking in the way they handle or fail to handle cases of sexual harassment in their workplaces, have been held to account, vicariously.

Unmasking sexual harassment’s true essence: It is a display of power

More recent cases, which have added to the jurisprudence include Erasmus v Beyers Naude Municipality (ECG) (unreported case no 828/2011, 13-4-2021) (Kroon AJ) and the Constitutional Court (CC) ruling handed down in McGregor v Public Health and Social Development Sectoral Bargaining Council and Others 2021 (5) SA 425 (CC). The pronouncements made by the judiciary in these cases send out a crystal-clear message that sexual harassment has no place in the workplace and it will not be tolerated. In the former case, the employer, a municipality in the Eastern Cape, failed to address complaints of sexual harassment and was ordered to pay R 3 998 955 to the complainant. This further entrenches employers’ vicarious liability for failing to put in place proper measures to address sexual harassment. In the latter case, the CC significantly reduced the amount of damages, which had been awarded to a senior employee of the Western Cape Department of Health who was found guilty of sexually harassing an intern under his supervision. He had been brazen enough to appeal due to a minor deviation in the disciplinary procedure. The court highlighted the fact that sexual harassment is often about a display of power. Khampepe J said, ‘at its core, sexual harassment is concerned with the exercise of power and in the main reflects the power relations that exist both in society generally and specifically within a particular workplace’. This sentiment is backed by extensive research which shows that sexual harassment has less to do with sex than it does power and fear. It is a way to keep women “in their place”’.

The legal framework addressing sexual harassment

The legal framework regulating sexual harassment consists of common law, the Constitution, the Labour Relations Act 66 of 1995 (LRA), the Employment Equity Act 55 of 1998 (EEA), as well as the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (The Code).

Common law

At common law, all employees have the right to security, dignity, and equal treatment. Before any specific legislation was passed, employers had the common law duty to provide a safe working environment, free of hostility. At common law, employers can be held vicariously liable for failing in their duty to provide a safe working environment where they are aware of the existence of sexual harassment.

The Constitution

The Bill of Rights guarantees a multitude of rights for everyone. In the context of sexual harassment these rights include the rights to equality and freedom from discrimination (s 9) and the right to dignity (s 10). In J v M the court recognised that sexual harassment violates the right to integrity of body and personality
(s 12). Section 23 guarantees ‘the right to fair labour practices’. Various pieces of legislation have been enacted to give effect to these rights.

Labour Relations Act

The LRA is particularly applicable in cases of sexual harassment where there are claims of unfair labour practices and unfair dismissals. If an employee is dismissed on one of the listed grounds in
s 187, the dismissal will be deemed to be automatically unfair. This might happen, for example, where an employee is dismissed because they reported sexual harassment – such as was the case in Lynne Martin-Hancock v Computer Horizons (unreported case no NH 11/2/14268, 10-1994). Section 186(1) also states that an employee may resign and claim constructive dismissal where an employer fails to address a report of sexual harassment.

Employment Equity Act

The purpose of the Act is to bring about equity in the workplace by promoting fair treatment through putting an end to unfair discrimination. Section 6 specifically prohibits any form of harassment and defines harassment as unfair discrimination. Section 60 of the Act codifies vicarious liability and places a duty on the employer to take action in reported incidents of sexual harassment. It states that if the employer fails to take the necessary steps and the sexual harassment by an employee is proven, the employer must be held liable as though the employer contravened the relevant provision.

The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace

The Code came into effect in March 2022 and repeals the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace. The Code is published in terms of the Employment Equity Act and follows the ratification by South Africa of the International Labour Organisation’s (ILO) Convention Concerning the Elimination of Violence and Harassment in the World of Work in November 2021. Some of the features of the new Code include the following –

  • while ‘sexual harassment’ is not defined in the EEA, the Code provides a definition of ‘sexual harassment’;
  • it makes it clear that employers have an obligation to ‘take proactive and remedial steps to prevent all forms of harassment in the workplace’.
  • employers are required to include the issue of harassment in orientation and training programmes in an accessible manner;
  • it provides a ‘minimum’ of the statements to be included in an employer’s harassment policy;
  • it refers to other legislation, which employers are required to comply with in order to prevent harassment in the workplace. These include the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, the Labour Relations Act, the Occupational Health and Safety Act 85 of 1993, and the Protected Disclosures Act 26 of 2000;
  • it not only applies to employees in a formal workplace. It also applies to apprentices, volunteers, job applicants, interns, suppliers, contractors and even customers. The protection of employees is extended to work-
    related trips, training or social activities, work-related communications, and employer-provided accommodation; and
  • it provides detailed procedures as to how employers are required to handle reports of sexual harassment, providing for confidentiality and even additional sick leave for victims.

South Africa’s jurisprudence on sexual harassment in the workplace has, no doubt, come a long way. It has progressed from an era where judges stated in judgments that they considered women to be ‘inclined to lie’, to having the CC characterise sexual harassment as a display of power. The many pieces of legislation, which have been enacted to address sexual harassment, continue to play a critical role in addressing sexual harassment with the seriousness and urgency it deserves. Studies still indicate that a number of victims do not report sexual harassment for fear of reprisal and victimisation. The more recent case law involving organs of state and municipalities shows that sexual harassment is an issue that affects society at large, and the workplace is but a microcosm of that society. Tax and ratepayers are directly affected when an organ of state neglects to have a sexual harassment policy in place and is ordered to pay damages to a victim.

It goes without saying, a solid sexual harassment policy that is properly drafted in line with the Code and clearly communicated, is a beneficial tool to create a better working environment and limit an employer’s liability. Moreover, it is likely to embolden victims and discourage would-be perpetrators. Time is indeed up, and employers must not be found wanting.

Mmathabiso Khalema LLB (UFS) Cert in Contract and Commercial Law (UCT) is a legal practitioner at Madinane SJ and Associates in Johannesburg.

This article was first published in De Rebus in 2023 (April) DR 19.