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Employers and sexual harassment in the workplace

South African labour law imposes important obligations on the employer when it comes to sexual harassment in the workplace. This was confirmed in the case of Liberty Group Ltd v M (2017) 38 ILJ 1318 (LAC) (“Liberty Group”). In this case the employee was sexually harassed by a manager on four different occasions. She did not report the incidents immediately, but when she did, the employer did nothing about it. The employee tendered her resignation, but a senior manager persuaded her to stay. After she had tendered her resignation a second time, the employer acted against the perpetrator. The employee claimed compensation from the employer for unfair discrimination in its handling of the matter.

The Labour Court found the employer liable under section 60 of the Employment Equity Act, 55 of 1998 (“the Act”), which provides for liability of an employer to an employee suffering from discriminatory conduct by another employee. This liability was based on the fact that the employer did not take the reasonable steps to protect the employee from the misconduct, as it should have done as soon as the conduct came to its attention.

The court confirmed the following requirements for an employer to be held liable in terms of section 60, as earlier set out in Potgieter v National Commissioner of the SA Police and Another (2009) 30 ILJ 1322 (LC):

  1. The sexual harassment as reported must have been committed by another employee of the employer;
  2. The sexual harassment must constitute unfair discrimination;
  3. The sexual harassment took place at the place of work;
  4. The sexual harassment must have been brought to the attention of the employer immediately. However, this rule is not strictly applied and the court will decide each case based on its facts. The court also stated that a sensible meaning must be given to the requirement of immediacy;
  5. The employer should have been aware of the incident or incidents of sexual harassment;
  6. The employer failed to take the necessary steps to deal with the misconduct or consult with the parties involved;
  7. The employer failed to take all the reasonable steps to ensure that its employees were not violating the provisions of the Act.

The court decided that the employer has a positive duty to ensure that this type of misconduct does not take place in the workplace. If it does occur, the employer should act as soon as reasonably possible to investigate the misconduct and stop it. This is also required by section 60(2) of the Act, which states that the employer must consult with all the parties and must take the reasonable and necessary steps to eliminate the misconduct from the workplace. If this is not done the employer can be held liable for damages by the employee who was the victim of the misconduct.

The decision of the Labour Court was confirmed by the Labour Appeal Court, and the appeal by the employer was dismissed. The employee was awarded an amount of R250 000 in damages.