South Africa: A Costly Mistake For Failing To Protect An Employee Against Sexual Harassment

The Labour Appeal Court ("LAC") judgment in Liberty Group Limited v MM is a reminder to employers to be vigilant when dealing with allegations of sexual harassment in the workplace and to ensure that managers are equipped to deal with reports of sexual harassment. A failure to do so can be a costly mistake, as the employer in this decision learnt.

In this case, Ms MM instituted a claim against the employer in the Labour Court, in terms of section 60 of the Employment Equity Act, 1998 ("EEA"), on the basis that the employer had failed to comply with its duty to take reasonable steps to protect her upon becoming aware that she was being sexually harassed.

Ms MM's evidence before the Labour Court was that she had been sexually harassed on four occasions by Mr Mosesi, a manager within her department. On the first occasion, she addressed the issue directly with Mr Mosesi on the basis that she thought he was "just being a man". She indicated that after this, she considered the incident resolved. On the second occasion, Mr Mosesi asked her to arrange snacks for a training session and invited her to attend the training. When Ms MM arrived for the training, she discovered that she was the only employee there. Mr Mosesi made unwanted comments towards her and touched her. She told him to stop, but he did not do so. On the third occasion, Mr Mosesi again requested Ms MM to arrange a training session and invited her to attend the training. He assured her that she would not be the only attendee. On arrival at the training, Ms MM discovered that she was again the only attendee. Mr Mosesi requested Ms MM to assist him with moving certain office supplies to his car, which was parked in the parking area. While in the parking area, Mr Mosesi touched her and pushed his body against her. He also stuck his tongue into her mouth. Ms MM testified that she felt like she was being raped. On the fourth occasion, Ms MM was working late and Mr Mosesi arrived and sat next to her. He then put his hand on her legs and moved it steadily higher. Ms MM stated that she had told him to stop and he had laughed in response. The employer denied that sexual harassment had taken place.

The Labour Court found that Ms MM had been sexually harassed by Mr Mosesi. It rejected the contention that Ms MM was motivated to raise false accusations against Mr Mosesi in order to obtain a salary increase. It found that her financial situation had "rendered [her] vulnerable" to Mr Mosesi's manipulations. The court also found that the employer was liable in terms of section 60 of the EEA for its failure to take reasonable steps to protect Ms MM on becoming aware of the sexual harassment. She was awarded ZAR250 000 as compensation – an amount that had been agreed to by the parties as the amount payable should the employer be found to be liable.

The employer appealed against the Labour Court judgment to the LAC. The LAC upheld the Labour Court's finding that Ms MM had been sexually harassed and that the employer was liable in terms of section 60 of the EEA. The following comments by the LAC are of relevance:

  • When Ms MM reported the matter to a senior manager during the course of a telephone conversation, he told Ms MM to study the employer's sexual harassment policy to determine whether the conduct amounted to sexual harassment. If she came to the conclusion that there had been sexual harassment, she should determine the procedure for lodging a complaint. The LAC found that this was an inappropriate response from a senior employee of a large institutional employer. This was despite the fact that he had contacted a human resources consultant employed by the employer and informed her of the complaint. As a senior manager, more was expected of him to ensure that the matter was properly investigated.
  • The human resources consultant had attempted to contact Ms MM telephonically and had sent her a request for a meeting. The LAC found that these efforts had been insufficient and noted that no attempt had been made to visit Ms MM at her place of work.
  • The LAC found that either the senior manager or the human resources consultant had informed Mr Mosesi about Ms MM's sexual harassment complaint without taking any steps to engage with Ms MM about the complaint. The court held that the effect of informing Mr Mosesi of the complaint was that the employer had failed to take positive steps to protect Ms MM in the manner contemplated by its own policy and the EEA.
  • Ms MM had withdrawn her initial resignation after the employer had undertaken to look into the complaint. However, no investigation ensued and she resigned for the second time.
  • After the sexual harassment was reported, insufficient steps were taken to ensure that the harassment did not continue.

The LAC referred to Potgieter v National Commissioner of the SA Police Service and Another, in which the court held that the following requirements need to be present for an employer to be held liable in terms of section 60 of the EEA:

  1. the sexual harassment conduct complained of was committed by another employee;
  2. the sexual harassment constituted unfair discrimination;
  3. the sexual harassment took place at the workplace;
  4. the sexual harassment was immediately brought to the attention of the employer;
  5. the employer was aware of the incident of sexual harassment;
  6. the employer failed to consult all relevant parties, or to take the necessary steps to eliminate the conduct, or otherwise comply with the provisions of the EEA; and
  7. the employer failed to take all reasonable and practical measures to ensure that its employees did not contravene the EEA.

In the recent decision of Campbell Scientific Africa (Pty) Ltd v Simmers and Others, the LAC adopted an extensive approach to determine what constitutes sexual harassment, emphasising the seriousness of this form of misconduct. This decision takes a similarly strict approach and serves as a reminder to employers that the LAC places a heavy onus on employers who are faced with an allegation of sexual harassment to investigate the complaint thoroughly and expeditiously. If employers fail to address issues of sexual harassment, they may face similar claims for damages.

Reviewed by Peter le Roux, an executive consultant in ENSafrica's employment department.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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