Sexual harassment – Not something to be allowed or ignored
Judge Waglay made the following statement in the LAC-case: Motsamai v Everite Building Products (Pty) Ltd (2010): “Sexual harassment is the most heinous misconduct that plagues a workplace, not only is it demeaning to the victim, it undermines the dignity, integrity and self-worth of the employee harassed”.
This citation sufficiently encapsulates the unique and distinctive characteristic ascribed to sexual harassment (herein after SH).
Our law and jurisprudence regarding SH are largely settled and the law provides for an array of remedies for the victim, as well as punitive consequences for the employer who has been found to have negligently breached a legal duty which it owes to its employees.
Within this context it is the duty to create and maintain a work environment where its employees are not sexually harassed by other persons in the working environment (the latter statement is a paraphrased extract from the judgement in the SCA-case: Media24 v Sonja Grobler 2004).
What is SH?
The Code of Good Practice on the Handling of Sexual Harassment cases (the Code), which is annexed to the LRA provides (amongst others) an elaborate definition of SH, which for the sake of brevity, I summarise as follows:
- SH is a form of unfair discrimination (par 3 of the Code)
Discrimination on this basis is prohibited on the grounds of sex and/or gender and/or sexual orientation. Cross reference this provision of the Code firstly with Section 6(1) of the Employment Equity Act (EEA) listing the various grounds for unfair discrimination including sex, gender, and sexual orientation. Secondly, cross reference Section 6 (c) of the EEA providing that harassment is a form of unfair discrimination prohibited on one or more grounds listed Section 6 (1) of the EEA.
- SH is unwelcome conduct of a sexual nature that violates the rights of an employee and creates a barrier to equity in the workplace (par 4 of the Code).
In this regard it is important that offensive conduct (excluding conduct of a physical nature) becomes SH when it is persisted with beyond “No”, expressed verbally or non-verbally by the recipient of the conduct. Example – The telling of a joke with sexual undertones in the presence of someone who takes offence to it and expresses his/her objection verbally or non-verbally towards the perpetrator, would become SH once the behaviour so objected to is repeated or persisted with beyond “No”.
- SH can manifest in one of the following ways (par 5 of the Code):
- By way of physical conduct such as unwelcome physical contact, sexual assault, rape, or strip search by or in the presence of the opposite sex.
- Verbal conduct which includes innuendo, suggestions, hints, propositioning, comments about a person’s body, jokes, insults, enquiries about a person’s sex life, whistling of a sexual nature, etc.
- Non-verbal conduct such as unwelcome gestures, indecent exposure and sending sexually explicit text messages, pictures, or objects.
- Victimisation of someone who refuses to submit to sexual advances, thereby creating a hostile working environment for such employee in retaliation.
- Quid pro quo SH when someone in authority influences or attempts to influence an employee’s employment circumstances by way of promotion, training, remuneration or other benefits as an incentive to surrender to sexual advances or a reward for doing so.
The employer’s obligation towards SH
The Code deals in detail with what is expected of employers and for a comprehensive account of what it entails, I suggest the reader consults the Code.
- Although the Code itself does not contain statutory provisions in the sense of provisions entrenched in the body of the law, there are certain provisions contained in the LRA making it obligatory for decision makers within the employment arena (employers, commissioners, judges) to take into account any relevant Code of Good Practice issued in terms of the LRA. In this regard I refer to Section 138(6), Section 188(2), and Section 203(3) & (4) of the LRA.
Again, by way of summary, what the employer is obligated to do is:
- To ensure that a working environment is created and maintained conducive of a climate of mutual respect and upholding the dignity of every employee and ensuring that grievances (and particularly those involving SH) are decisively dealt with, not trivialised, and not ignored.
- To adopt a SH policy in compliance with the guidelines provided in the Code, spelling out the employer’s stance towards SH, what is expected of employees and members of management regarding SH, its prevention, handling procedures and the consequences where SH is perpetrated within the workplace.
- To communicate the SH policy widely within the organisation, bringing it to the attention of all interested parties, including suppliers and contractors having dealings with the business.
- Educate employees and managers regarding the organisation’s expressed stance in respect of SH as articulated in the SH policy.
Remedies available to victims of SH
The Grievance Procedure
The most obvious remedy which is available to the victim of SH is to invoke the grievance procedure as a formal means of bringing the matter to management’s attention.
Admittedly, given the particular nature of SH and the trauma associated with it, it may be advisable to provide for a fast-tracked grievance procedure or a single stage grievance process presided over by a discreetly selected panel to deal with SH grievances. This would do away with the aggrieved employee having to relive the trauma of the harassment repeatedly, going through all the progressive steps of the procedure before reaching a determination.
The constructive dismissal option
Where the grievance procedure does not yield the results which the victim reasonably expects or where a grievance procedure does not exist or is regarded inappropriate for reasons such as endemic bias towards the victim and the conduct the victim has to endure reaches the point where continued employment becomes intolerable, the victim may be forced to resort to resignation with immediate effect, claiming constructive dismissal.
Just a few words of caution in this regard:
– the decision to resign in this fashion has to be an almost out of character irrational decision, coinciding with breach of contract (unilaterally not serving the contractual notice) and having done so after having reached a dead end as far as internal remedies are concerned. Remember, constructive dismissal is essentially an unfair dismissal disguised as a resignation.
– It was borne out by the LC-case: Ntsabo v Real Security CC (2003) that if the victim intends to allege that the dismissal (constructive, as it is alleged to be) was based on unfair discrimination, it is imperative that unfair discrimination has to be formally argued in the victim’s statement of case in order to bring it within the ambit of Section 187(1)(f) of the LRA. This is necessary, since the LRA does not list SH per se as unfair discrimination.
The civil prosecution route
Nothing prevents the victim to institute civil proceedings, claiming damages from the perpetrator. It is a prerequisite at common law to only be able to claim damages in this way if negligence is proved. This route is however not without certain risks involved – There is no guarantee that the damages claimed will eventually be paid, proportional negligence could be applied and there is always the possibility of a cost order if the case is lost.
On the positive side, if successful, the claimant may also be awarded general damages, which could be substantial.
The route of the Compensation for Occupational Injuries and Diseases Act (COIDA)
COIDA provides for compensation for occupational injuries and diseases sustained or contracted by the employees in the course of their employment.
Obviously, not all instances of SH caused some form of disablement or injury that would bring it within scope of COIDA. It has to have resulted from an “accident” as defined (which arose out of and in the course of the employee’s employment) and the injury sustained must qualify as “an occupational injury” as defined (a personal injury sustained as result of an accident).
In the SCA-case: Member of the Executive Council for the Department of Health, Free State Province v EDN the employee was raped while on duty on the employer’s premises, but by an intruder from outside.
The victim instituted a common law civil claim for damages against the employer as result of having been raped. The employer countered this claim by arguing that the civil claim for damages is precluded by Section 35(1) of COIDA, effectively barring the claimant from bringing a civil claim where the injury sustained resorts within scope of COIDA and the compensation provided for in this act.
The SCA however found that based on the established facts of the case, it was inconceivable that a rape perpetrated by an outsider on a doctor on duty at the hospital could arise out of the doctor’s employment, nor that the risk of rape be incidental to such employment, which are the qualifying criteria for a COIDA-claim.
Consequently, the SCA held that only where the risk involved is inherent, resulting from an occupational injury caused by an accident as defined by COIDA, would the claimant’s claim be restricted to compensation provided for in COIDA. In the case at hand, this was found not to be the case. The civil claim was therefore not restricted.
The EEA route
Having regard to the provisions of Sections 6 (prohibition of unfair discrimination) and Section 50(1)(d) & (e) of the EEA (read with Section 50(2)(a) & (b)) the victim of SH could claim for compensation and/or damages as result of having been unfairly discriminated against.
Potential penalties or prejudice the employer is likely to attract within context of SH
- Constructive dismissal
As mentioned above under: “Remedies available to victims of SH”, when inaction or inappropriate action is proven on the part of the employer to decisively deal with an incident of SH in the workplace, it could prompt the victim to resign in order to escape the intolerability of the situation and successfully claim constructive dismissal against the employer.
- Vicarious liability
Section 60 of the EEA deals with liability of the employer.
As the focus in this blog is placed on the occurrence of SH in the workplace (which Section 6(1)(c) of the EEA, by implication, classifies as unfair discrimination) I will read into the under-mentioned sub-sections of Section 60 its application in respect of SH.
Sub-section (1): Any act in contravention of any provision of the EEA (such as harassment being a form of unfair discrimination – my addition) has to be reported to the employer (brought to the employer’s attention – my addition).
Sub-section (2): The employer must consult all relevant parties and take the necessary steps to eliminate the alleged conduct and comply with the provisions of the Act.
Sub-section (3): If the employer fails to take the necessary steps as per sub-section (2) and it is proved that the employer contravened the relevant provisions, the employer must be deemed also to have contravened that provision (in addition to the contravention of the perpetrator – my addition).
(Author’s note: This effectively makes the employer vicariously liable for the SH perpetrated).
Sub-section (4): Despite sub-section (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.
(Authors note: This respite in respect of the possibility of attracting vicarious liability is afforded the employer for having had all precautions in place, as required by the Code, to decisively prevent and address the occurrence of SH in the workplace.
Allegations of SH also has a “sharp end”
This blog would however not be complete and properly balanced if mention is not also made of specific potential pitfalls in the employee’s way, associated with allegations of SH.
It is not uncommon that amorous relationships may occur between employees in the workplace. This often happens even within extra-marital context. Provided that such affair is based on mutual consent as regards the advances between the parties, it should remain a private affair and be respected as such.
Often though, these affairs tend to turn sour, especially where one participant decides to put an end to the affair for whatever reason. If that brings an end to the amorous relationship and the advances between the erstwhile partners, it will still be respected as a private matter.
However, if one of the partners does not accept the withdrawal from the affair and continues to make advances towards the other partner, which advances are now unwelcomed, the persistence with such advances may well constitute SH.
SH used as a “weapon”
It has happened occasionally that a false claim of SH by someone posing as a “victim”, has been used to get back at another employee or manager. Once this malicious conduct is however exposed, the complainant is likely to face disciplinary action with serious consequences.
It should be evident from the afore going that SH is a multi-facetted phenomenon which enjoys protection by the Constitution of South Africa (by implication), as well as by our courts, as is abundantly illustrated by a myriad of case law on the subject of SH.
It is just not worth the while for employers to be indifferent about SH in the workplace. The consequences of inaction or turning a blind eye is just too devastating.
The Code is a valuable resource to use to comply with what is legally expected of employers and to stay clear of unnecessary reputational and other damages as far as SH is concerned.
The importance associated with SH in the workplace has been reiterated in a recent LAC-case: Ekurhuleni Metropolitan Municipality v South African Local Government Bargaining Council & others (LAC) 2022, where the judge stated that in the context of sexual harassment the sanction serves an important purpose in that the sanction “sends out an unequivocal message that employees who perpetrate sexual harassment do so at their peril and should more often than not expect to face the harshest penalty”, citing a passage from the LAC-case: Campbell Scientific Africa (Pty) Ltd v Simmers (2015).
The importance of dealing decisively with SH in the workplace cannot be over-emphasised.