New case deals with sexual harassment in South Africa – and when the business is liable

As citizens slowly return to the workplace, there is a renewed focus on issues such as discrimination and harassment in the workplace. This poses the question – what liability does an employer have if one of its employees is found guilty of sexually harassing a fellow employee?

Employment law experts at Cliffe Dekker Hofmeyr say that in terms of a recent decision of the Labour Court, while employers are legally obligated to eliminate unfair discrimination in the workplace, an employee who is subjected to sexual harassment in the workplace must comply with internal policies relating to the reporting of sexual harassment and ensure that incidents are reported as soon as possible.

While the court stressed at the outset of the judgment that sexual harassment is “heinous and horrendous conduct since it undermines the dignity of women and the values enshrined in our Constitution”, it did not uphold the employee’s claim, which sought to hold the employer liable for the acts of sexual harassment perpetrated by two of its employees.

“The case turned on the application of section 60 of the Act, which the court viewed as a codification of the common law principle of vicarious liability i.e. where the wrongful acts of an employee during the course and scope of employment are attributed to the employer,” Cliffe Dekker Hofmeyr said.

“Based on the undisputed evidence of the employee, the court found that the employee had been sexually harassed by two of her managers.”

Having made this finding, the court then considered the circumstances under which an employer is deemed to be a perpetrator of unfair discrimination under section 60 of the Act, notwithstanding the fact that an employee committed the sexual harassment and not the employer.

The court set out the steps of a section 60 claim as follows:

  • Allege a contravention at the workplace,
  • Report the contravention immediately,
  • Prove the alleged contravention,
  • Allege and prove the employer’s failure to take the necessary steps.

“If an employee proves all four, they are entitled to a deeming order of liability. In order to escape liability, an employer must prove that it took the necessary and preventative steps,” Cliffe Dekker Hofmeyr said.

Reporting obligations and timing

Having found that the employee was subjected to sexual harassment, the court considered the second step and the employee’s reporting obligations.

In terms of section 60, there is an obligation to ensure that there is an “immediate bringing to the attention of the employer”.

“As soon as allegations of sexual harassment have been reported to an employer it has an obligation to eliminate the conduct, said Cliffe Dekker Hofmeyr.

“Given this resultant obligation on the employer, the court found that an employee must act with the necessary haste. In this instance, there was a dispute as to whether the employee reported the contravention immediately.”

The court referred to a previous Labour Appeal Court decision in Liberty Group v M.M  in which the court suggested that the word “immediate” must be afforded what it termed a “sensible meaning”, and that a limited delay in reporting would be acceptable. In this case, it was one or two months.

The court found that, on the employee’s own version, she only brought the managers’ conduct to PRASA’s attention on 28 November 2016 when she lodged a formal grievance.

This was some two to three years after the sexual harassment took place. The court found that this could not be construed as a limited delay, as contemplated and found to be acceptable in Liberty.

“In this instance and given the delay, the court found that PRASA had been deprived of its statutory duty to eliminate unfair discrimination. The sexual harassment was not immediately brought to the attention of PRASA within the contemplation of section 60(1) of the Act. As a result, the employee failed to demonstrate step two as set out above.”

In all of the circumstances and while the employee had been subjected to sexual harassment, the court found that PRASA had not contravened section 60, Cliffe Dekker Hofmeyr said.

“The employee had failed to bring the sexual harassment to PRASA’s attention immediately and PRASA had taken reasonable steps to eliminate the conduct when it was finally brought to its attention.

“This case is an important reminder to employees who are subjected to sexual harassment in the workplace to comply with internal policies relating to the reporting of sexual harassment and to ensure that incidents are reported as soon as possible. In the absence of such steps, an employer can be prevented from discharging its statutory obligation to eliminate sexual harassment in the workplace.”

  • Commentary by Gillian Lumb, Taryn York and Kelebogile Selema of law firm Cliffe Dekker Hofmeyr.

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New case deals with sexual harassment in South Africa – and when the business is liable