The major harassment problem bosses in South Africa can’t ignore

 ·9 Jun 2024

An employer can be ordered to pay compensation for their failure to investigate complaints of sexual harassment adequately.

This was outlined in a recent Commission for Conciliation, Mediation and Arbitration (CCMA) case, which considered an employer’s liability in instances where it fails to comply with its statutory duties and its own sexual harassment policy by not adequately investigating an employee’s complaints about improper conduct of a colleague.

Werksmans Attorneys’ director Jacques van Wyk, associate Danelle Plaatjies, and candidate attorney Hanán Jeppie followed and unpacked the facts and importance of the case.

Background of the case

A senior employee claimed to have been sexually harassed by a colleague on two separate occasions.

She subsequently reported the incidents to her manager, who advised her to contact the company’s Ethics Department.

The employee subsequently completed a formal report of the incidents, and an investigation was initiated. Months later, she was suspended and issued with a notice to attend a disciplinary hearing.

The disciplinary hearing found that the incidents “were insufficient to constitute sexual harassment for purposes of the Employment Equity Act (EEA).

Following this, the employee referred an unfair discrimination dispute to the CCMA.

CCMA findings

Van Wyk, Plaatjies and Jeppie explained that the CCMA Commissioner was required to determine whether:

  • The employee was unfairly discriminated against by the employer on the basis of sex, sexual orientation and gender in breach of the EEA;
  • The employer was liable in terms of section 60 of the EEA; and
  • The employee was entitled to payment of compensation.

The employee reported experiencing inappropriate contact from the perpetrator; initially, he tapped her on the back and subsequently pinched her waist, causing her discomfort. While she didn’t report the initial incident, she chose to report the second one by emailing a colleague, following the guidelines of the sexual harassment code.

Thus, the Commissioner agreed that her actions and experiences met the criteria for sexual harassment.

“Section 60 of the EEA provides for liability of employers in instances where an employee, while at work, has contravened a provision of the EEA,” said the legal experts.

Additionally, the EEA “provides that the employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct and that the failure by the employer to take such steps will render the employer deemed to have also contravened that provision.”

The Commissioner concluded that the claims of harassment and inappropriate touching made against the Employee were credible.

The legal experts said that this conclusion was based on the employer’s failure to hold a disciplinary hearing promptly and to adhere to its own harassment policy and ignored a request for CCTV evidence and did not consider corroborating testimony from a witness.

Additionally, the Commissioner determined that the employer “failed in its duty to consult all relevant parties to take the necessary steps to eliminate the alleged conduct and comply with the provisions of the EEA,” said van Wyk, Plaatjies and Jeppie.

The employer was therefore deemed to have contravened the EEA and ordered to pay the Employee an amount equivalent to two months’ compensation.

Legal commentary

“This case underscores the critical importance of upholding workplace harassment policies and conducting thorough investigations into allegations of misconduct, and to do so expeditiously,” said van Wyk, Plaatjies and Jeppie.

“The Commissioner’s ruling highlights how incidents, such as unwanted touching or undue attention, can constitute sexual harassment and thus the failure to promptly address may result in the imposition of liability on the part of the employer.”

“Furthermore, the failure to follow established harassment policies and consult the Employee during the investigation process demonstrates a disregard for statutory obligations and employee well-being,” added the experts.

Read: Blocking people from jobs based on criminal records in South Africa – what bosses should know

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