IT IS NECESSARY TO ENSURE MANAGERS ARE TRAINED TO HANDLE THESE SITUATIONS APPROPRIATELY
Employers are often unaware of their liability stemming from an incident of sexual harassment perpetrated by one employee against another.
Those who have been in the Labour Relations space long enough will remember the matter of Grobler-Media 24 where a harassed employee was awarded R776,814 for general damages, ongoing medical expenses, lost income, future loss of earnings and future medical expenses against the employer due to the misbehaviour of a colleague.
The issue of the employer liability recently came to the fore again in the Labour Appeal Court in Liberty Group v Masango (Case no JA 105/2015, March 7 2017). The court dealt with the extent of this employer liability for sexual harassment in terms of section 60 of the Employment Equity Act (EEA).
The court set out requirements for a claim against the employer to succeed:
- The alleged harassment was “immediately” brought to the attention of the employer (section 60(1));
- The employer had failed to “consult all relevant parties” and “take the necessary steps to eliminate the alleged conduct and comply with the provisions of this act” (section 60(2)); and
- The employer failed to show that it had done “all that was reasonably practicable to ensure that the employee would not act in contravention of this act” by committing sexual harassment (section 60 (4)).
After due consideration of the facts of the matter, an analysis of which is not required for purposes of this article, the court awarded damages to the employee the amount of R250,000, with costs.
DEVELOPMENT OF THE LAW
Our law constantly develops, as was witnessed by the introduction of the Code of Good Practice a number of years ago, together with further developments to protect all genders as well as the provision for same sex sexual harassment.
In Vodacom Services Provider Co (Pty) v Phala NO & Others (2007) 28 ILJ 1335 (LC), the third respondent employee, a female claims administrator, had been charged with sexual harassment after several male employees complained that she had sexually harassed them over a period of more than six months.
No doubt the issue of employer liability will likewise continue to develop the more these matter are placed before our courts.
GUIDELINES WHEN INVESTIGATING SEXUAL HARASSMENT
A number of years ago, it was suggested that the following act as guidelines when dealing with sexual harassment in the workplace:
- Guard against over-empathising with either the alleged victim or the alleged perpetrator;
- Take the social, cultural and psychological background of both the alleged victim and perpetrator into account;
- Bear in mind that each alleged victim’s perception of what constitutes sexual harassment may be different;
- Take the known historical background of the alleged victim and the alleged perpetrator into account;
- Consider all the circumstances surrounding the allegations;
- Where possible, obtain representations of employees who know either or both of the alleged victim and alleged perpetrator;
- Consider whether a reasonable person in the same circumstances as the alleged victim would have construed the actions of the alleged perpetrator as being sexual harassment; and
- Consider whether a reasonable person in the same circumstances as the alleged perpetrator would have acted in the manner that he or she allegedly did.
Above all, these considerations should keep the objective definition of sexual harassment in context. These factors still provide a clear guideline and course of action on today’s times. What are employers to do?
Considering the above cases, factors and the incumbent risk, it is not only important to have a sexual harassment policy in the workplace, but it is necessary to ensure managers are trained in how to handle these situations appropriately.
If instances of alleged sexual harassment are not managed appropriately by the employer and their representatives, this places the employer at risk of having damages claims successfully brought against them.
Remember, it is your duty as an employer to ensure a safe workplace for all employees. Be proactive in managing any risks in this regard to ensure the safety of your employees and to avoid unnecessary litigation.
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