Following on my article dealing with the grievance procedure, it makes sense to deal with a topic where the grievance procedure has a specific role to play, hence my decision to select sexual harassment in the workplace as the topic if this article.
Essentially, an employee who is sexually harassed has all the reason to be aggrieved and to expect to be heard in a nonthreatening way, also expecting not to be prejudged, ridiculed or ostracised. To make this happen, the employer has to provide for a vehicle
or a process conducive of bringing comfort and security to the employee who fell victim to sexual harassment. The grievance procedure certainly is such a vehicle
but may not be the only vehicle or process which should be provided for.
Where the grievance procedure is a way of dealing with the phenomenon of sexual harassment, it may be prudent and sensible to first discuss sexual harassment conceptually within broader context in order to create a common frame of reference, at the same time pointing out where in the process and to what extent the grievance procedure finds application.
The offence “sexual harassment in the workplace” (SH) is markedly different and legally more complex in nature than other work-related offences. In essence, it manifests when the victim’s gender and/or physique becomes the focal point in the eyes of the perpetrator during person-to-person interaction in the workplace. Consequently, the other personal attributes related to the victim, like intelligence, expertise and personality are ranked secondary or are not considered at all. The victim is therefore reduced to a mere “commodity”, as opposed to be recognised and appreciated as a colleague or human resource.
Predominantly, the victims of SH are women, while admittedly, men may also fall prey to SH. Against this background, this article deals with the phenomenon of SH from the viewpoint of legal remedies available to victims, while also highlighting the dangers it potentially holds for employers and how employers can avoid these dangers.
In its simplest form, SH is defined as unwanted conduct of a sexual nature. This conduct can be verbal (e.g. hints, advances/propositioning, jokes, innuendos, sexist name calling), non-verbal (e.g. gestures, display of sexually explicit pictures or objects, indecent exposure), physical (e.g. physical contact, fondling, groping, rape) and quid pro quo
SH (e.g. offering employment benefits, such as employment opportunities, promotion or training in exchange for sexual favours). Related hereto is creating a hostile working environment for those who refuse to succumb to quid pro quo
Although a single incident of the behaviour described above, may constitute SH, from a practical point of view, SH as an offence occurs “beyond no”, expressed verbally or non-verbally by the victim. This implies that within context of seemingly unintentional and less serious instances of SH (e.g. first-time name calling or telling of a joke with sexual undertones in the presence of the potential victim) the “perpetrator” could escape being formally charged with SH if he/she desists from continuing with the conduct constituting SH, after being confronted with the expressed “no” from the potential “victim”.
From the victim’s point of view, the most obvious course of action is to raise a formal grievance against the perpetrator in the hope that the latter will be dealt with decisively by the employer, thereby effectively stopping the practice of SH.
There are however, understandably so, many reasons why a victim may be reluctant or apprehensive to raise a grievance in the normal way, especially where the perpetrator holds a more senior position than that of the victim, which reluctance or apprehension could stem from distrust in the system, or fear of retaliation and victimisation. It is therefore advisable that alternative avenues for reporting SH (besides the formal grievance procedure) be provided for in policy. One possible procedural accommodation of a grievance based on sexual harassment may be to fast track the grievance process, allowing the victim to avoid having to go through several progressive stages of the grievance procedure and each time having to relive the whole degrading episode. In this regard a single stage can be provided for in the grievance procedure, specifically for unfair discrimination cases (under which sexual harassment resorts) with a carefully selected panel presiding. Where the victim is a woman, there must at least be a woman on the panel.
Alternatively, or when raising a grievance is considered not feasible or does not yield the desired results, the victim may be forced to resign, due to the working environment becoming toxic, hostile and intolerable and claim constructive dismissal.
These remedies fall within the ambit of the Labour Relations Act (LRA). The LRA however does not explicitly list SH as constituting unfair discrimination, therefore the victim has to formally argue unfair discrimination as the basis for the claim of unfair dismissal – see in this regard the comment under the Labour Court case: Ntsabo v Real Security
On the other hand, the Employment Equity Act (EEA) in Section 6 (read within proper context) prohibits SH and defines it as a form of unfair discrimination. This opens the door to victims of SH to claim compensation from the employer, the latter having become vicariously liable through not having acted decisively once a claim of SH has been reported. This is over and above the victim’s recourse to a remedy under the LRA, instituting civil proceedings against the perpetrator and claiming compensation under the Compensation for Occupational Injuries and Diseases Act (COIDA).
– It is conceivable that sexual harassment occurring within the working environment and within work related context, but where the perpetrator is not an employee of the organisation. The perpetrator may be a contractor working on the premises or he/she may be a client or a visitor. This however does not exonerate the employer from the obligation to deal with the matter decisively and expeditiously, albeit in appropriate legitimate ways other than through the internal disciplinary policy.
The phenomenon of SH poses potential dangers to the employer, the most crucial of which is attracting vicarious liability. The EEA is clear that where the employer fails to consult all relevant stakeholders in order to address the occurrence of SH and fails to take the necessary steps to eliminate SH, the employer is deemed to have contravened the provisions of the EEA regarding SH and hence becomes vicariously liable, with the associated ramifications, such as potentially facing damage and compensation claims.
Vicarious liability is however subject to certain legal prerequisites, such as that the perpetrator must have been an employee of the organisation, the perpetrator must have committed a delict (a violation of the law) against the victim and the perpetrator must have acted within the scope of his/her employment, that is, where the conduct can reasonably be construed to have occurred in a work-related context.
A successful claim of constructive dismissal in consequence of the relevant provisions of the LRA, as a recourse in respect of sexual harassment, renders the employer liable in respect of unfair dismissal, which could result in the reinstatement of the victim, with or without compensation provided for in the LRA, or the awarding of compensation only to the victim.
Addressing the potential dangers associated with SH would however be incomplete when a word of caution is not sounded regarding “office affairs” turning sour (as they often do), in which case erstwhile wanted and welcome attention and advances between colleagues become unwelcome and unwanted, bringing continued amorous behaviour well within the ambit of SH.
Relevant case law
Grobler versus Naspers Bpk & another heard in the Cape High Court (2004)
The employer was found to have been vicariously liable for the sexual harassment of the employee through the employer’s inaction and compensation in respect of damages suffered by the employee to the amount of R 776 814.00 was ordered.
Media 24 Ltd & another versus Grobler heard in the Supreme Court of Appeal (SCA) (2005)
The judgement of the Cape High Court mentioned above was taken on appeal by Media 24 Ltd. The appeal however failed (with costs). In its finding, the SCA imposed a delictual liability on the employer for having failed to take reasonable steps in order to address and eliminate SH.
Ntsabo versus Real Security CC (Labour Court) (2003)
In this case, heard in the Labour Court, the applicant claimed to have been sexually harassed by her superior and then added to this claim that she was constructively dismissed by her employer, as well as that her dismissal constituted an automatic unfair dismissal, as provided for in the LRA.
To be able to succeed with the latter claim, she had to have argued unfair discrimination upfront to bring her claim within the ambit of Section 187 of the LRA. Since she did not initially argue unfair discrimination as motive for her resignation, the court found that her claim regarding an automatic unfair dismissal could not succeed. The court however had no problem finding that the applicant was indeed constructively dismissed by the employer, through having been subjected to SH.
From the above follows that the appropriate and sensible thing for employers to do, is to formulate a policy regarding SH, in consultation with various relevant stakeholders (employees, employee representatives, employee organisations, etc.), incorporating measures to eliminate the occurrence of SH, providing functional procedures to follow and to educate both line management and the work force regarding the phenomenon of SH, internal remedies available to address it and the employer’s official standpoint regarding SH.
Once this is objectively proven to have been done and the policy on SH is operative in the organisation, section 60 of the EEA exonerates the employer from the mentioned vicarious liability, in the event of SH occurring in the workplace.
The Code of Good Practice on the Handling of Sexual Harassment Cases, published under Part B of the LRA, provides comprehensive practical guidelines to the employer regarding the handling of SH, including how to formulate a policy on SH.
One should not underestimate the devastating effect which SH has on the victim and make reasonable provisions in company policy for reducing, if not eliminating the negative effect of SH on the dignity and privacy of the victim.
In this regard providing counselling to the victim is certainly appropriate and so is consequence management in respect of the perpetrator. Cognisance must however be taken of the potential trauma inflicted on the victim when having to face the perpetrator again during the disciplinary hearing of the perpetrator. In this regard, the employer could, for instance, devise practical protective measures, such as “shielding” the victim from visual contact between him/her and the perpetrator during the hearing proceedings, where the victim usually is the primary and only witness to what occurred.
Lastly, for proper balance, the policy on SH should not lose sight of the possibility that claims of SH potentially could be used maliciously as a “weapon” against another employee. Understandably, both the victim and the alleged perpetrator have rights which need to be protected. Without unnecessarily inhibiting the reporting of incidents of SH, a caution should be sounded in policy that, while management remains committed to act decisively against anyone found guilty of SH, unfounded and malicious claims of SH will not be tolerated.
Be proactive and seriously consider formulating a policy on sexual harassment, reinforced by the necessary procedures and avenues designed specifically to deal with this degrading and humiliating behaviour in the workplace – that is, if you do not have such a policy infrastructure already in place.
Assistance in this regard is available by simply contacting the JJK ER/IR Consultancy
J J (Koos) van der Merwe – Chartered HR Professional, registered with the SABPP