We recently wrote about the dilemma faced by an employee where his boss had an affair with his wife. This week we focus on the very real situation where employees suffer sexual advances from colleagues, managers or clients. On 7 March 2017, the Labour Appeal Court handed down judgment on a sexual harassment claim. The case is of importance as it confirms the principles applicable for employer liability arising from its failure to do all that was reasonably possible to ensure that employees are not subjected to sexual harassment.
The Employment Equity Act is the cornerstone statute guaranteeing the right to equality in the workplace. It gives effect to the prohibition against unfair discrimination contained in the South African Constitution where such discrimination may arise in the employment context. It protects employees against various prohibited actions, including harassment. The EEA also places a positive duty on employers to promote equal opportunity in the workplace through elimination of unfair discrimination. Employers attract liability where they fail to take the necessary steps to ensure that their employees do not breach their obligations under the EEA.
In Liberty Group Limited v. Maseko, the LAC was asked to overturn the judgment of the lower court. Maseko held the employer liable "for having failed to take reasonable steps to protect the [employee] on it becoming aware of her sexual harassment at work by her manager." The employee resigned after claiming that she had been subjected to various acts of sexual harassment by her manager. The Labour Court held that the employer did not take sufficient action after being made aware of the complaint. The employer's efforts to defend its position was no doubt compromised by the fact that the manager in question was no longer in its employ (and that it tried to reconstruct events that took place in 2009). The LAC dismissed the appeal against the Labour Court's judgment. It confirmed the order and included agreed damages in the amount of R250 000.
Employers should consider the judgment carefully and heed the guidance offered by the LAC. The courts will critically evaluate action taken by employers where employers are aware of breaches of the EEA. A sexual harassment policy is essential in any workplace, but even more so how the employer gives effect to it. Progressive employers should ensure that some level of induction or training on harassment and discrimination is provided to employees, especially newly hired staff. Creating an audit trail of complaints lodged and steps taken could avoid some of the difficulties faced by the employer in the above case. Perhaps a process similar to a whistle-blowing hotline, managed externally, could be used to allow staff to report incidents of sexual harassment.
Critically, once an employer becomes aware of allegations of harassment, it should investigate the matter. Being faced with a reluctant witness in the complainant is not a bar against taking action (and certainly not a defence against statutory liability). The EEA obliges the employer to "consult with the relevant parties" and "take the necessary steps to eliminate the alleged conduct." Employers could also consider appointing a senior executive or manager as its public champion in complaints of discrimination or harassment. Employees may be more inclined to approach a senior employee who has gravitas and the backing of the organisation where they fall victim to harassment. Creating a workplace free of discrimination is not only the right thing to do, it could assist employers in avoiding statutory liability. Employers who disregard workplace discrimination and harassment may find, though, that the negative impact on the organisations' employee relations climate, staff retention and corporate image outweigh the damages awarded by a court.