Employers take careful note of this important decision!
In the Labour Appeal Court judgement of Liberty Group Limited v MM JA 105/2015 (2017) ZALAC 19 (7 March 2017), the Court sounded a stern warning and sent a clear to message to employers to take all reasonable steps when dealing with allegations of sexual harassment in the workplace, or pay dearly for their omission to do so!
Summary of the facts of the Liberty case:
The employee alleged that she had been sexually harassed on four occasions by her Manager. After the first incident, she reported the incident and was referred to the Sexual Harassment Policy for her to establish whether the Manager’s actions constituted sexual harassment.
Thereafter, she was again harassed on three different occasions. Each time progressively more serious – starting with unwanted comments & touching her, then again touching her and pushing his body against hers, forcing his tongue into her mouth. On the last occasion, he placed his hand on her legs and kept moving it higher.
She tried to resign during September 2009, but was then requested not to do so by one of the supervisors in order for the matter to be investigated. The employer failed to do anything further and eventually she resigned during October 2009, claiming that the work environment was made intolerable by the unwanted sexual attention of her manager.
She first referred the matter to the CCMA on the basis of an unfair discrimination dispute. Thereafter the matter was referred to the Labour Court in terms of section 60 of the Employment Equity Act (“the EEA”).
Summary of the relevant legislation:
Code of Good Practice:
Sexual harassment is defined in the Amended Code on the Handling of Sexual Harassment in the Workplace as:
‘…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:
- whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation;
- whether the sexual conduct was unwelcome;
- the nature and extent of the sexual conduct; and
- the impact of the sexual conduct on the employee.’
In terms of item 5 of the Code, all employers are required to take appropriate action when instances of sexual harassment occur and are brought to their attention. Item 6 directs employers to adopt policies on sexual harassment, implement the policy and take disciplinary steps against employees who fail to comply with the policy.
The Employment Equity Act:
Section 60(1) provides that any contravention of a provision of the Act must immediately be brought to the attention of the employer. Section 60 (2) directs an employer to consult all parties involved in alleged sexual harassment claims and take the necessary steps to eliminate the alleged conduct. Where the employer fails to take the necessary steps and a contravention is proven, the employer too is deemed to have contravened the provision.
Where the employer can prove that it “did all that was reasonably practical to ensure that the employee would not act in contravention of the Act, the employer is not liable (A van Niekerk & A Smit et al, Law@work, 3rd edition)
Decisions of the Labour Court:
- The Labour Court found that the respondent had proved her sexual harassment by the Manager.
- The Court found that three reports regarding the respondent’s predicament had been made.
- It was found that the respondent’s resignation was prompted by the fact that she had no option but to deal with the Manager and that this “left [her] without any option but to tender her resignation”.
- The Court found that the appellant (employer) “was made aware of the sexual harassment before the employee resigned and failed to take the necessary steps then”
- The Court consequently found that –
– The Respondent had failed to take reasonable steps in terms of Section 60 of the EEA to protect the Applicant upon becoming aware of the complaint at the earliest opportunity when the Applicant brought it to the attention of the Respondent.
– The Respondent only took necessary steps after the Applicant’s second resignation letter.
– Accordingly, the Respondent failed to protect the Applicant as required in terms of section 60 of the EEA.”
Having succeeded on the merits the appellant was ordered to pay costs on the ordinary scale with the matter referred for a hearing on quantum. The parties in due course agreed quantum in the amount of R250 000 and the appellant was granted leave to appeal against the finding on the merits only.
The employer took the matter on appeal to the Labour Appeal Court.
Issues on appeal:
The Labour Appeal Court was requested to deal with the following issues:
Whether the Labour Court misdirected itself in:
- failing to apply Section 60 of the EEA correctly;
- finding that the respondent had proved on a balance of probabilities that the respondent’s manager, contravened a provision of the EEA in committing sexual harassment;
- finding that the respondent brought the alleged conduct to the attention of the appellant as per the EEA;
- finding that the appellant failed to consult relevant parties and take the necessary steps to eliminate the misconduct alleged.
In the alternative, if sexual harassment was proved:
- whether the appellant having had such conduct brought to its attention failed to take the necessary steps set out in s 60(2) of the EEA;
- whether the Labour Court erred and misdirected itself by failing to find that the appellant did all that was reasonably practicable to ensure that the Manager as its employee would not act in contravention of the EEA.
Findings by the Labour Appeal Court:
The Appeal Court firstly found that it was correct of the Labour Court to find that the respondent proved her sexual harassment at the hands of her Manager. It therefore follows that the Labour court also correctly found the existence of conduct amounting to unfair discrimination in terms of the EEA.
The Court found that the reporting of the harassment by the employee was, although not “immediate” as required by the Act, nevertheless sufficiently timeous “to place the employer in a position to act in the manner required of it in terms of s 60”.
It found that the Labour Court correctly found that having brought the conduct to the attention of the appellant, 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 appellant.
The Court went on to criticize what it described as the “hostile manner of its defence to the respondent’s claim” and that it “failed to have regard to the purpose and objects of the EEA. It said that the respondent 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; and 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 appeal failed and the order for the employer to pay an amount of R250 000 as damages was confirmed.
Employers and employees need to take heed of the following:
- The provisions of the Amended Code of Good Practice should be complied with. Policies & Procedures dealing with sexual harassment should be drafted and put in place.
- Allegations of sexual harassment must “immediately” be reported to the employer.
- Sexual harassment constitutes unfair discrimination.
- Employers cannot and should not ignore any allegations of sexual harassment reported to them. They need to consult all relevant parties or take the necessary steps to eliminate the conduct or otherwise comply with the provisions of the EEA.
If the employer fails to take all reasonable steps and practical measures to ensure compliance with the provisions of the EEA, employers can be held liable.
From the above, we submit it is clear that employers are not at liberty to ignore allegations of sexual harassment and the provisions of the EEA generally. Doing so would be at their own peril and as has been shown, can be embarrassing and costly.
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