In SA Broadcasting Corporation Ltd v Grogan N.O. and Another  2 BLLR 207 (LC), in an application for review of an Arbitrator’s award, Steenkamp AJ (as he then was) held that dismissal was the appropriate sanction and stated the following:
“…in respect of the first sexual harassment charge, the complainant was a young woman employed on contract. She had testified that the second respondent [a 53 year old male regional sales manager] had frequently given her “baby kisses” and also given her literature pertaining to friendship and love.”
“The court accepted the arbitrator’s finding that this was indicative of a desire to express or confirm romantic feelings, and that the relationship had culminated in two incidents in the second respondent’s car which involved physical contact. The first complainant had complained several months after these incidents and after the employee had pressed disciplinary charges against her.”
“In the present case, this Court (or a different arbitrator) may well have come to the conclusion that dismissal was the appropriate sanction, having found the second respondent guilty of sexual harassment with regard to complainant. The conduct of the second respondent was reprehensible, and sexual harassment especially by older men in positions of power is a scourge in our society, including the workplace” [At 51]. [Emphasis added].
“Inferiors who are subjected to sexual harassment by their superiors in the employment hierarchy are placed in an invidious position. How should they cope with the situation? It is difficult enough for a young girl to deal with advances from a man who is old enough to be her father. When she has to do so in an atmosphere where rejection of advances may lead to dismissal, lost promotions, inadequate pay rises, etc what is referred to as tangible benefits in American law her position is unenviable.”
“Fear of the consequences of complaining to higher authority whether the complaint is made by the victim or a friend, often compels the victim to suffer in silence. That sexual harassment of an employee in an inferior position is despicable is only fully realised when one has to comfort a young girl crying her heart out in a quiet corner.” [See J v M Ltd (1989) 10 ILJ 755 (IC), before De Kock M].
The two judgements cited above have been selected in that the Courts in no uncertain terms expressed its dismay with the incidence of sexual harassment in the workplace as well as the dire consequences that may follow such conduct inter alia the summary dismissal of the perpetrator.
Sexual harassment in the workplace and elsewhere is not a contemporary occurrence. Reported judgments in the law journals of international jurisdictions are common and widely publicised and the subject matter of numerous authoritative articles.
In the authoritative publication by Dr John Grogan ‘Dismissal’ Juta 2014 ed. at 247 to 248 the learned author refers to judgments handed down by both English and United States courts where it was held that a duty rests on employers to protect their employees from harassment by other employees and by customers. It is also recognised that employees may be dismissed for sexually harassing colleagues of either sex.
Prior to the enactment of the South African Employment Equity Act 55 of 1998 (as amended) (the EEA), in the matter Grobler v Naspers Bpk & another  5 BLLR 455 (C) the High Court found, based on the employer’s common law liability, vicariously liable for sexual harassment committed by a supervisor against an employee. [The EEA was enacted on 16 January 2014].
In cases where the harassment involves employment related threats, such as dismissal or no promotion or prejudicial changes to employment conditions (i.e. quid quo pro harassment), liability can arise from the creation of a “hostile environment”.
However, the Court accepted that the employer can escape liability if it can prove that it took immediate and effective steps to prevent the harassment, and/or if the plaintiff failed to take reasonable steps to avail herself of assistance or to avoid the harm.
The question to be decided in sexual harassment cases was whether the law should regard sexual harassment by an employee as falling within the risks which employers should assume by conducting business?
The Constitution of SA enjoins the Courts to develop the common law to give effect to the Bill of Rights. One of the entrenched rights is the ‘right to freedom and security of the person and to physical and psychological integrity.’ The Court found that the rules of vicarious liability must be adapted to uphold that right. The employer was accordingly vicariously liable to the employee for damages.
The Court noted that the sexual harassment had transformed the employee from a lively and friendly individual into an “emotional wreck” incapable of working or living a normal life. Her prognosis was poor. She was accordingly awarded general damages of R150 000, as well as agreed medical costs and an amount of R47 348 for loss of income.
The EEA, s (6) (3) prohibits any type of harassment of an employee, on a ground listed in s (6) (1), is a form of unfair discrimination and therefore prohibited.
It can be argued that the most common type of harassment in the workplace is sexual harassment, which amounts to unfair discrimination on the grounds of gender, sex or sexual orientation. [See s (6) (1) of the EEA].
In another authoritative publication by Le Roux et al, ‘Harassment in the Workplace: Law, Policies and Processes’, LexisNexis, 2010 ed, at 1, the learned authors make the interesting observation that harassment in the workplace is no longer (and perhaps never was) limited to sexual harassment. Other forms of harassment are emerging in the workplace in the form of ‘Clandestine Harassment.’ [Term coined by the author – copyright reserved]J.
The ‘new forms’ of harassment that are emerging are far more discreet and seldom identified in such terms that can be as pervasive and devastating as the more recognisable forms of harassment. In this category could be found workplace bullying, ostracism, victimisation and subjecting an employee to an occupational detriment for making a protected disclosure (also referred to as “whistle blowing”). The latter is not regulated by the EEA but by the Protected Disclosures Act, 66 of 2000 (the PDA).
Le Roux at 152 refers to the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000 (the PEPUDA) and states that PEPUDA applies to persons not covered by the EEA.
As a consequence harassment claims that are workplace-based often fall outside the employment relationship may be brought in terms of the law of delict in the civil courts or in terms of the PEPUDA. Another action seldom brought is ‘Unfair labour practice in terms of the Constitution.’
According to Le Roux at 152, harassment is actionable based on the ground that the conduct is in violation of the constitutional right to fair labour practices. In Denel (Pty) Ltd v D P G Vorster  11 BLLR 1292 (T) the Court suggested that the constitutional right to fair labour practices can found an action outside the labour law procedures, and where a safe and non-discriminatory workplace environment is understood to be a contractual term of employment, the breach of this contract may be regarded as a violation of the constitutional right to fair labour practices. [At 16].
Therefore, perpetrators falling outside the employment relationship would include customers, suppliers, independent contractors, and others having dealings with a business.
At the outset it should be recorded that postings on the LinkedIn network should preferably be brief and not created; nor should it be perceived by the reader as if a comprehensive or an authoritative work of reference on the subject matter. The objective is to edify, within the confines of the medium and to generate interest and possible debate on the subject matter.
Employment Equity Act 55 of 1998 (as amended) (the EEA)
It seems that the incidence of sexual harassment is on the rise, so to speak having regard to the increase thereof in reported judgments and arbitration awards.
The increase in sexual harassment claims is alarming insofar as the legislature has given impetus to discourage sexual harassment in the workplace. According to Grogan at 248 harassment is equated with discrimination in terms of the EEA. [See s 6(1) and s (6) (3) which prohibits any form of harassment, including sexual harassment].
The EEA does not define ‘Harassment’, however, in the recently published ‘Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace’ (the EEASH Code) as a schedule to the EEA, item 3 therein stipulates, “Sexual Harassment as a form of unfair discrimination –
‘Sexual harassment in the working environment is a form of unfair discrimination and is prohibited on the grounds of sex and/or gender and/or sexual orientation. ‘”
In terms of the provisions of Item 4, “Test for Sexual Harassment” the factors to be considered in the test for sexual harassment are listed below:
“Sexual harassment is unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace, taking into account all of the following factors:
4.1 whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation;
4.2 whether the sexual conduct was unwelcome;
4.3 the nature and extent of the sexual conduct; and
4.4 the impact of the sexual conduct on the employee.”
Item 5, “Factors to establish sexual harassment” contains details of factors that would indicate sexual harassment under the headings and as cited and paraphrased below:
“5.1 Harassment on a prohibited ground”
- The grounds of discrimination…establish sexual harassment are sex, gender and sexual orientation.
- Same sex-harassment… can also amount to sexual discrimination…
“5.2 Unwelcome conduct”
- Includes unwelcome, non-verbal conduct…
- Previous consensual participation in sexual conduct does not render continues conduct justifiable…
- A complainant may seek assistance or intervention of a third party to alert the perpetrator that the conduct is unwelcome…
“5.3 Nature and extent of the conduct”
- Unwelcome conduct must be of a sexual nature and includes physical, verbal or non verbal conduct…”
Under item 5.3 provides a detailed description of the nature and extent of the unwelcome conduct which for the purpose of this article will not be listed, however, would best be referred to as the factual background as recorded in the judgment Liberty Group Ltd v MM  10 BLLR 991 (LAC). The Liberty judgment would be discussed below.
“5.4 Impact of the conduct”
- The conduct should constitute an impairment on the employee’s dignity, taking into account… [Various factors are listed which would also be referred to in the Liberty judgment discussed briefly below].
Liberty Group Ltd v MM  10 BLLR 991 (LAC) – A brief summary of judgment
The Liberty judgment and the material facts that led to the matter ending in the LAC to a significant extent serves as an example of the factors and considerations as referred to in the EEASH Code referred to above.
The same applies to the judgment Gaga v Anglo Platinum Ltd & others  3 BLLR 285 (LAC) in which the LAC made the following findings as quoted below:
“Besides, and most importantly, it is not a requirement of either the first respondent’s policy [employer] or the Code [a reference to the Code of Good Practice in the Handling of sexual harassment cases] for a victim to be offended before conduct will constitute sexual harassment. Repeated unwelcome remarks will be enough”. [At 40].
“The rule against sexual harassment targets, amongst other things, reprehensible expressions of misplaced authority by superiors towards their subordinates.
The fact that the subordinate may present as ambivalent, or even momentarily be flattered by the attention, is no excuse; particularly where at some stage in an ongoing situation she signals her discomfort. If not the initial behaviour, then, at the very least, the persistence therein is unacceptable”. [At 41].
The Liberty judgment and the factual background that led to protracted and costly litigation were of a more serious nature as is borne out by the summary that follows hereunder.
The employee resigned after more than 10 years in the employment of the employer from her position as an insurance clerk. In the letter of resignation, it was recorded that the work environment became intolerable.
The reason: due to persistent sexual harassment by her manager, a Mr M. She recorded further in the letter of resignation that the matter was reported to the employer to no avail.
The employer’s sexual harassment policy seeks to “eliminate all forms of sexual harassment in the workplace”, “maintain a workplace free of sexual harassment while being committed to ensuring “positive steps to provide a working environment for its employees who are free from all forms of sexual harassment”.
A positive duty is placed on line management and human resources consultants to ensure that employees receive support on a confidential basis as well as assistance in clarifying whether offending behaviour constitutes sexual harassment. This involves discussing alternative resolutions and providing advice regardless of the course of action that the employee chooses to take.
Evidence was led in the Labour Court that the manager sexually harassed the employee on no less than four occasions. The nature of the acts of harassment has been recorded hereunder:
- inviting the employee for training where she was the only delegate in attendance. Unwarranted comments were made; the manager touched her body, massaged her shoulders and stood too close to her. She requested him to stop without success;
- another training session was arranged by the manager where he inappropriately touched the employee’s body, rubbed his body against hers so that she could feel that he was aroused;
- at the said training session he pushed the employee against a pillar and forced his tongue into her mouth. This caused great distress where after in the bathroom she washed her face and mouth. Upon return refused the manager’s offer to take her home;
- on a day whilst working overtime the manager arrived and then sat next to her, placed his hand on her leg, moving it steadily higher up her leg. When she demanded that he should stop he laughed and instructed that henceforth on a daily basis feedback of work progress should be given; notwithstanding the fact that he was not her direct supervisor;
- the employee was traumatised and feared that she may lose her job if the matter was reported, given that the manager was not only her senior but also responsible for appraising her performance;
- following the incidents and after approximately a month, she wrote a letter to the employer’s HR Consultant, Ms S wherein a salary increase was requested;
- reference was made ‘that she was caught between a rock and a hard place and could not afford to live and work at the Pretoria branch’. The primary purpose of the letter was to meet with the HR Consultant and to report the incidents of sexual harassment;
- the meeting with HR did not materialise where after a meeting followed with a senior manager, a Mr H. She raised the incidents of sexual harassment whereupon H advised that the sexual harassment policy should be followed;
- H informed HR and the employee was handed with forms to lodge a complaint.
- Thereafter the manager contacted her and informed her that he was aware of a complaint lodged with HR. The employee deduced that H informed the manager of the sexual harassment report.
It was common cause that the employee resigned on two occasions. The first resignation 28 September 2009 that was withdrawn after a discussion with her team leader. In the following two-week period no steps were taken by the employer to investigate the matter. On 13 October 2009, a second resignation letter was submitted and a week later referred a dispute to the CCMA.
Thereafter, during the review proceedings in the Labour Court, the employee testified that she had been sexually harassed by Mr M and that:
‘… nobody did anything about it. There is a letter that was written to settle this matter. Yes, there was because it had gone on long enough [and] Liberty was not willing to hear what was happening.
The Labour Court found that the employee had proved sexual harassment. As a result, the Court found that the employer’s denial of vicarious liability for the conduct of the manager as well as the remiss to call him to testify was ‘rather (sic) taking the matter too far. Other than that M is no longer employed by the employer, no other explanation was proffered as to why he was not called to testify.’
The Court found further the employer had failed to take reasonable steps in terms of S 60 of the EEA to protect the employee from becoming aware of the complaint at the earliest opportunity when she brought it to the attention of the employer; and
– That the employer only took necessary steps after the employee’s second resignation letter;
– Accordingly, the employer failed to protect the employee as required in terms of S 60 of the EEA.
The parties agreed on quantum in the amount of R 250 000, 00 and the employer was granted leave to appeal against the finding of the merits.
The matter was taken on appeal by the employer to the Labour Appeal Court. The EEA [s 5] requires every employer to promote equal opportunity in the workplace and ensure that no person unfairly discriminates, directly or indirectly, against an employee, in any employment policy or practice on one or more grounds, which include harassment. [S6(1) read with s 6(3)].
In treating harassment as a form of unfair discrimination in s 6(3), (4) the EEA recognises that such conduct poses a barrier to the achievement of substantive equality in the workplace by creating an arbitrary barrier to the full and equal enjoyment of an employee’s rights, violating that person’s dignity and limiting their right to equality at work. [At 32].
The LAC then referred to the definition of sexual harassment in the Amended Code on the Handling of Sexual Harassment in the Workplace. [See Amended Code on the Handling of Sexual Harassment Cases in the Workplace (Issued by the Minister of Labour in terms of s 54(1)(b) of the Employment Equity Act 55 of 1998 under GN 1357 of 2005) at para 4].
Section 60 of the EEA provides that:
‘(1) If it is alleged that an employee, while at work, contravened a provision of this Act, or engaged in any conduct that, if engaged in by that employee’s employer, would constitute a contravention of a provision of this Act, the alleged conduct must immediately be brought to the attention of the employer.
(2) The employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct and comply with the provisions of this Act.
(3) If the employer fails to take the necessary steps referred to in subsection 2, and it is proved that the employee has contravened the relevant provision, the employer must be deemed also to have contravened that provision.
(4) Despite subsection (3), an employer is not liable for the conduct of an employee if that employer is able to prove that it did all that was reasonably practicable to ensure that the employee would not act in contravention of this Act.’
The LAC referred to Piliso v Old Mutual Life Assurance Co (SA) Ltd and Others (2007) 28 ILJ 897 (LC) at para 15 where the LC found that ‘it is clear that s 60 imposes liability on an employer where a provision of the EEA has been contravened, in its construction and wording the provision is not a model of clarity.’
Confusion has arisen as to what is required to prove an employer liability under s 60, with the requirements of s 60(2) often being conflated with those of s 60(4).
Much of the lack of clarity as to what must be proved under s 60 centres on s 60(4). The debate has often turned on whether the reference to an employer’s obligation “to ensure that the employee would not act in contravention of this Act” is intended to mean that the employer takes steps in advance to eliminate future conduct.
The LAC found the preferable interpretation was given to s 60 in Biggar v City of Johannesburg, Emergency Management Services  6 BLLR 577 (LC). The Labour Court found that the employer had failed to take all necessary steps to eliminate racial abuse perpetrated by its employees and to have failed to do everything reasonably practicable to prevent continued harassment. This followed sustained racial harassment of the applicant and his family by co-employees in residential premises provided by the employer. [At 37].
The LAC referred with approval to the judgment by the LC in the matter in Potgieter v National Commissioner of the SA Police Service and Another (Potgieter) (2009) 30 ILJ 1322 (LC) at para 46, in which judgment the LC set out the requirements for employer liability to arise under the EEA where the complaint raised is one of sexual harassment.
These are that:
(i) The sexual harassment conduct complained of was committed by another employee.
(ii) It was sexual harassment constituting unfair discrimination.
(iii) The sexual harassment took place at the workplace.
(iv) The alleged sexual harassment was immediately brought to the attention of the employer.
(v) The employer was aware of the incident of sexual harassment.
(vi) The employer failed to consult all relevant parties, or take the necessary steps to eliminate the conduct will otherwise comply with the provisions of the EEA.
(vii) The employer failed to take all reasonable and practical measures to ensure that employees did not act in contravention of the EEA.
The LAC observed that “It is noteworthy that in recording the last requirement as for whether the employer failed to take steps to ensure that employees “did not” act in contravention of the EEA, Potgieter moves away from the words “would not” in s 60 (4).”
The existence of sexual harassment:
The LAC at 41 found, “It is trite that on appeal, the court lacks “the advantage of judging the credibility of witnesses by observing their deportment in the witness-box” and that credibility findings are not to be judged in isolation, but are to be considered in light of proven facts and the probabilities of the matter. [Santam Bpk v Biddulph 2004 (5) SA 586 (A) at 589F-G with reference to Protea Assurance Co Ltd v Casey 1970 (2) SA 643 (A) at 648D-E and Munster Estates (Pty) Ltd v Killarney Hills (Pty) Ltd 1979 (1) SA 621 (A) at 623H-624A].
Where credibility findings are made, an appeal court will disturb such findings where these are plainly wrong or the assessment of the probabilities undertaken was inadequate and unsatisfactory such as to amount to a material misdirection on facts.
The LAC found that the LC formed its view as to the veracity and reliability of the employee’s evidence having regard to her demeanour, the calibre of her testimony, contradictions which arose in her evidence considered against that of other witnesses and the probabilities. It did so without the benefit of Mr M’s evidence, as the only other party to the harassment alleged, who was not called by the employer to testify.
The LAC expressed its disapproval as to the nature and manner of the cross-examination of the employee [at 44], “…what is apparent is a vicious and sustained attack launched by the employer, through its counsel, on the employee’s person, her motives and credibility and the reliability of her evidence over some three days of unacceptably harsh, cruel and vicious cross-examination.
The result was that she became victim to unwarranted and unjustified secondary harassment at the hands of the employer, an issue that was taken up by this Court with counsel at the outset of the hearing.”
The LAC found further, that with no evidence put up by the employer to contradict the employee’s version, the Labour Court cannot be faulted for its finding on the probabilities that sexual harassment occurred.
“In the circumstances, the Court’s finding that the employee had proved her sexual harassment at the hands of Mr M must stand. It follows that the Labour Court correctly found that the employee had proved the existence of conduct amounting to unfair discrimination as defined in the EEA.” [At 47].
Report of the conduct:
The employer’s case was inter alia that the employee failed to report the conduct of the manager immediately. Therefore, she failed to act in a manner required by s 60(1) of the EEA.
The LAC found that:
Although the conduct was not reported immediately, as required by s 60(1), with a delay of some weeks having elapsed between the sexual harassment and the report to Mr H,’ I am satisfied that the requirement that conduct be reported “immediately” must be given a sensible meaning.’ [At 51].
This is done through considering the provision within its context and in a manner, which ensures an interpretation that does not lead to a glaring absurdity; even where the interpretation was given may involve a departure from the plain meaning of the words, used. [See Natal Joint Municipal Pension Fund v Endumeni Municipality  2 All SA 262 (SCA); 2012 (4) SA 593 (SCA) at para 25].
A determination as to whether a report has been made in accordance with s 60(1) requires an assessment of the facts unique to each matter.
‘I am satisfied that the employee’s report of the conduct, while not made immediately, was nevertheless made within sufficient time and that an unduly technical approach to the timing of the report is not warranted on the facts of this case.’ [At 53].
The LAC found that the employee’s report to Mr H of her sexual harassment by her immediate manager constituted a report of the conduct in the manner required by s 60(1) of the EEA.
The employer’s response to the report:
The LAC was critical of the failure of Mr H, “a senior employee, employed with a large institutional employer, more could reasonably have been expected of Mr H, not only in his immediate response to the respondent but in ensuring that the matter was investigated appropriately.”
As to the employee’s call to the employer’s call centre, the LAC could not take issue with the findings by the LC in that the employee was advised to refer the matter to the CCMA.
The LAC found further that the LC correctly found that having brought the conduct to the attention of the employer, the steps required by s 60(2), to “consult with the relevant parties” and take to “take the necessary steps to eliminate the alleged conduct and comply with the provisions of the Act” were not complied with by the employer.
Liability under s 60 of the EEA:
The LAC also found that senior managers of the employer, namely H and S had been informed that the employee had raised a sexual harassment complaint against her immediate manager.
The manager, Mr M informed the employee that he was aware that she had contacted human resources. The employee’s alarm at being told by her superior of her contact with human resources is understandable given the sensitivity of the report.
The effect of informing Mr M of this communication was that the employer failed to take the positive steps to protect the employee in the manner contemplated by both its own policy and the EEA to ensure that Mr M “would not act in contravention of this Act”.
The absence of any investigation into the issue until after the employee had resigned ‘was glaring.’
The Court found at 62-63 that the employer failed to have regard to, or adhere to its own sexual harassment policy in taking “appropriate action” when “complaints are identified and/or raised” or offering “appropriate support” on a confidential basis, the lifting of suspension of the manager, justified the stance by the employee.
In its approach to the interpretation of s 60 and the hostile manner of its defence to the employee’s claim, the employer not only failed to have regard to the purpose and objects of the EEA but adopted precisely the response that the EEA seeks to prevent:
- a failure to recognise the seriousness of the conduct complained of;
- a lack of interest in resolving the issue in the manner required;
- a failure to consult and take the necessary steps to eliminate the conduct complained of;
- a failure to do all that was reasonably practicable to ensure that its employee would not act in a manner contrary to the provisions of the EEA.
The LAC finally found that:
“For all of these reasons, the appeal must fail. There is no reason in law or fairness as to why costs should not follow the result.”
“As the quantum of the damages as already been agreed upon between the parties, it is only proper that the amount is included in the order.”
The appeal was dismissed with costs; and
The employer ordered to pay the amount of R250 000, 00 as damages within 10 days of the date of judgment to the employee.
In short: the judgment by the LAC constitutes a clear and unequivocal message to employers of the Court’s disapproval of the offence of sexual harassment.
A substantial amount in damages may follow. As a consequence the legal costs incurred would be significant.
A prudent for employer should revisit their policies and procedures dealing with sexual harassment, thereafter conduct training or briefing of employees and managers as to compliance therewith.
September 18, 2018.
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