Sexual Harassment by employee or employer

An employer that does not take the necessary steps to effectively deal with sexual harassment in the workplace, where it is proved that the conduct was immediately brought to the attention of the employer, and where it is proved that an employee of the employer has contravened a provision of the Employment Equity Act 55 of 1998 ( the EEA), will itself be deemed to have contravened that provision, and the employer will be held liable for such sexual harassment.

The Labour Appeal Court had an opportunity to pronounce on a matter where an employee of the company had been harassed by her manager.

The harassment complained of included that her manager made unwarranted comments to her, touched her body, massaged her shoulders and stood too close to her.

Another incident included that her manager requested her to assist him in carrying boxes containing office supplies back to his car and that while loading the boxes into his car, the manager inappropriately touched her body and rubbed his body against hers so that she could feel he was aroused. She told him to stop but he pushed her against a pillar and forced his tongue into her mouth.

And yet a further incident involved the manager placing his hand on the employee’s leg, and moving it steadily higher up her leg. When she told him to stop, he laughed.

What complicated the situation for the employee was that she needed a salary increase to meet her financial obligations, but she feared that she may lose her job if she reported the matter, given that the manager was not only her senior but also responsible for appraising her performance.

The employee eventually reported the matter and was advised to look at the company’s sexual harassment policy to determine whether the conduct amounted to sexual harassment and if so, to determine what the requirements were for lodging a complaint.

The company’s HR consultant, who was made aware of the employee’s plight, made very little effort to get hold of the employee.

The employee eventually resigned and instituted a claim against her former employer.

The issue before the Court was whether the employer had acted as it was enjoined to in terms of the EEA – if it had not – the employer would itself then be deemed to have contravened the provision of the EEA, and the employer would be liable to the employee for the sexual harassment perpetrated by the manager.

A four-stage enquiry was embarked upon by the Court.

The first part of the enquiry was whether the conduct had immediately been brought to the attention of the employer. The judgment dealt with, inter alia, the meaning of the word “immediately”, and the Court found that the conduct had been brought to the attention of the employer immediately.

The Court then found that the employer had failed to consult all the relevant parties and take the necessary steps to eliminate the alleged conduct, and thus failed to comply with the provisions of the EEA, which was the second part of the enquiry.

As the employer was found to have not taken the necessary steps referred to in the second part of the enquiry, and as it was proved that the manager had contravened a provision of the EEA, in terms of the third part of the enquiry, the employer was deemed to have also contravened that provision.

Finally, and in regard to the fourth part of the enquiry, the Court found that the employer failed to recognise the seriousness of the conduct complained of; showed a lack of interest in resolving the issue in the manner required; failed to consult and take the necessary steps to eliminate the conduct complained of; and failed to do all that was reasonably practicable to ensure that its employee would not act in a manner that was contrary to the provisions of the EEA.

The employer was accordingly held liable and was ordered to pay the employee damages in an amount of R 250 000-00.

The judgment sends out a clear message to employers that sexual harassment needs to be taken extremely seriously and must be dealt with appropriately, sensitively and expeditiously.

When an issue of sexual harassment arises, the relevant provisions of the EEA need to be carefully navigated by both employers and employees, and expert legal advice should always be obtained.

A claim under the EEA is however not the only claim that may be instituted by an employee who has been the victim of sexual harassment. In my next article, I shall deal with an employee’s claim for an unfair dismissal as a result of sexual harassment.