Complainants of sexual harassment must report

• South Africa

• Employment law
• Other

25-11-2021

Rubbing salt into the wound

In the recent case of National Union of Metal Workers of South Africa and Another v Passenger Rail Agency of South Africa JS1071/18, delivered by the Labour Court on 23 September 2021, the Court was required to determine whether an employer should be held liable for acts of sexual harassment perpetrated by its employees against the applicant (“the complainant”).

In this case the complainant had been sexually harassed by two of her superiors, this much was common cause. However, the complainant did not formally report the matter to her employer and simply confided in a fellow employee. The complainant then sought to hold her employer liable for the acts of sexual harassment perpetrated against her by her superiors.

In dealing with the matter, the Court inter alia:

1. Considered the definition of sexual harassment, which is “unwanted conduct of a sexual nature which makes a person feel offended, humiliated, or intimidated” and, quite correctly, stated that sexual harassment is a heinous form of conduct which undermines both the dignity of victims and the values enshrined in our Constitution; and as a form of discrimination.

It is, of course, impossible for a company, in the form of an employer, to commit an act of sexual harassment. The ability to sexually harass another in the workplace falls squarely on the individuals who have been employed by the employer.

That said, while a company is not physically capable of sexually harassing another, it is not absolved of any responsibility in this regard. In fact, section 60 of the EEA provides that if an employee of an employer contravenes the EEA, and the employer does not consult all relevant parties and take steps to eliminate the conduct complained of (including sexual harassment), the employer will be deemed to have contravened the EEA. This means that an employer can be held liable for sexual harassment perpetrated by its employees.

In order to hold an employer liable, the following must be proven:

1. contravention of the EEA (which the complainant must prove); and

2. failure on the part of the employer to consult all relevant parties and take steps to eliminate the conduct complained of (which the employer must disprove).

An employer has no real way of ensuring that its employees comply with the laws of the country, which was the difficulty faced by the employer in this case. Often when sexual harassment occurs, it happens in an isolated setting only involving the harasser and the victim. The only practical step available to an employer to prevent and/or deal with sexual harassment in its workplace is to adopt, implement and enforce a sexual harassment policy, which the employer had done in this case.

The Court held that an employer cannot be said to have failed to attend to its obligations if it was not aware of the alleged contravention. Therefore, the Court held that a victim of sexual harassment is responsible for immediately brining the contravention to the employer’s attention.

Before holding an employer liable for the sexual harassment perpetrated by its employee(s), our courts will consider the following:

1. does the complainant allege that he/she was sexually harassed?

2. did the complainant immediately report the sexual harassment to the employer?

3. does the complainant allege, and can he/she prove, that the employer failed to comply with its obligations as set out in section 60 of the EEA?

The Court held that in adopting a sexual harassment policy the employer had taken all the necessary steps it could to ensure that a breach of the EEA did not occur and that it was prevented from complying with its obligations in terms of section 60 of the EEA given that the complainant had not reported the sexual harassment to it in line with the procedure set out in its sexual harassment policy. In the circumstances the Court held that the employer could not be held liable in terms of section 60 of the EEA.

Conclusion

A victim of sexual harassment needs to ensure that the incident is immediately reported to the correct person within the company, which is usually outlined in a sexual harassment policy adopted by the employer. If the complainant fails to do so, then he/she will not be able to pursue a section 60 claim against the employer.

In order to avoid a claim in terms of section 60 of the EEA, it is advisable for all employers to adopt a sexual harassment policy with which complainants can comply in order to ensure that the necessary steps are taken by it when faced with a sexual harassment complaint.