Chapter 5 of the Employment Equity Act 55 of 1998 (hereinafter called EEA) provides that every employer must take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice.
Section 6 provides that no person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practise, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground;
Section 6(3) of the EEA provides that harassment amounts to unfair discrimination and as such are prohibited. Sexual harassment thus forms part of unfair discrimination.
The Code of Good Practice: Sexual Harassment Cases sets out the test for sexual harassment as follows:
“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:
- Whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation
- Whether the sexual conduct was unwelcome
- Nature and the extent of the sexual conduct
- The impact of the sexual conduct on the employee
Section 60 of the EEA provides for an employer to be held liable for the misconduct of an employee in certain circumstances. The section provides as follows;
- 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.
- 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.
- 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.
- 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 case of Liberty Group Limited v M (JA105/2015) [2017] ZALAC 19; (2017) 38 ILJ 1318 (LAC) (7 March 2017) an employee referred a dispute of unfair discrimination to the Labour Court in terms of Section 60 of the Employment Equity Act (“the EEA”).
The employee testified that she had been sexually harassed on four occasions by her manager. The sexual harassment consisted of, amongst others, inappropriate sexual comments, touching, groping and massaging.
The employee reported a case of sexual harassment to Liberty’s Human Resources consultant who was dismissive of the complaint and informed the Respondent that she should consult Liberty’s sexual harassment policy to determine whether the conduct, in fact, amounted to sexual harassment.
The employee subsequently resigned. No steps were taken by Liberty. The Labour Court awarded R250,000.00 compensation to the employee.
National Transport Movement obo Legodi v Mafoko Security Services (Pty) Ltd (2019) a grievance about sexual harassment was the issue to be decided. The employee referred to an unfair labour practice case to the CCMA, alleging that discrimination took place because she was sexually harassed.
The employee claimed that while she was employed on a fixed-term contract, a supervisor had promised her permanent employment in exchange for sexual favours. She further alleged that the employer failed to take action against the supervisor.
The employer disputed that he failed to act upon receipt of the allegation. He stated that the employee failed to provide him with details of the sexual harassment allegation, thereby allowing the supervisor to go off the hook.
The Commissioner noted that the Employer Equity Act provides that employers may be held liable for sexual harassment by an employee and provided procedures to be followed to eliminate the misconduct. An employer is not liable if it did all that was reasonably practicable to ensure that the offender did not act in contravention of the Act.
The alleged offence had been brought to the employer’s attention by the employee’s union. The employer had convened a consultation meeting, at which the complainant had refused to provide information. The alleged offender had denied the allegation, but the complainant’s evidence had not been challenged in arbitration
The Commissioner, accordingly, accepted that the offence had occurred, but found that the respondent had done everything reasonably possible to deal with the matter. The referral was dismissed.
The above cases show how important it is that an employer must act as soon as possible if an allegation of sexual harassment is brought to his attention. If not, and in terms of Section 60 of the EEA, it will cost the employer dearly.
ABOUT THE AUTHOR
Nicole Sauls. Started with SEESA in 2014. She completed a B.Com Degree at UWC in 2006 and an LLB at UNISA in 2015.