By Neil Coetzer, Partner and Taryn York, Employment Law, Benefits & Industrial Relations, Cowan-Harper Attorneys – In Liberty Group Limited v Margaret Masango JA105/2015 the Labour Appeal Court dealt with a claim of unfair discrimination arising from an employee’s sexual harassment by a manager of the employer.
In this case the employee had been sexually harassed on at least four occasions by her line manager and reported the incidents of sexual harassment to the employer. The employee was referred to the employer’s Sexual Harassment Policy in order to determine whether the harassment she was being subjected to amounted to sexual harassment, and if so, what requirements she would need to fulfil in order to lodge a complaint against her manager.
The employee did not lodge the complaint of sexual harassment against her line manager, as she was contacted by him and informed that he was aware that she had reported the harassment. The employee was thereafter afraid to lodge a complaint.
The employee attempted to resign from the employer on 28 September 2009, but was persuaded not to do so by her team leader in order for the employer to be able to deal with and investigate the matter.
The employer then appears to have taken no further steps to investigate the claims of sexual harassment following the employee’s attempted resignation. The employee resigned on 13 October 2009 and cited the reason for her resignation as her working environment being intolerable due to the ongoing and continued sexual harassment by her manager.
The Labour Appeal Court found that it had to determine, inter alia, whether the Labour Court had failed to apply section 60 of the Employment Equity Act 55 of 1998, as amended (“the EEA”) correctly, whether the employee’s manager had contravened a provision of the EEA in committing sexual harassment and whether the employer failed to take the necessary steps in order to eliminate the alleged misconduct.
The purpose of the EEA is to promote equal opportunity in the workplace and to ensure that no person unfairly discriminates, directly or indirectly, against an employee, in any employment policy or practice on one or more grounds. Section 60 of the EEA also provides for liability of employers who fail to take all reasonable steps to ensure that its employees do not contravene the EEA.
The Court considered the requirements for employer liability under the EEA and found that the requirements to prove employer liability were, inter alia, that the alleged harassment must be brought to the immediate attention of the employer and that the employer must have failed to take all reasonable and practicable measures to ensure that employees did not act in contravention of the EEA.
The Court found that as the employer did not call upon the employee’s manager to give evidence to indicate that no sexual harassment had occurred, the employee had proved that she had been sexually harassed by her manager and that she had proven the existence of unfair discrimination as defined in the EEA.
The Court further found that the employee had brought the sexual harassment to the attention of the employer immediately and that the employer did not take all reasonable and practicable steps to eliminate the alleged conduct and comply with the EEA after being notified of the sexual harassment by the employee.
The Court reiterated that the employer, in its response to the employee’s report of sexual harassment, failed to take note of the purpose of the EEA and acted in a manner which the EEA seeks to prevent. The employer failed to recognise the serious nature of the misconduct, was disinterested in resolving the issue in the prescribed manner and did not protect its employee against such unfair discrimination.
The employer’s appeal was dismissed with costs and it was ordered to pay the employee damages in the amount of R250 000,00.
The judgment serves as a warning to employers to ensure that reports of sexual harassment and unfair discrimination are addressed quickly and in an appropriate manner. Failure to do so may lead to a breach of the EEA and a subsequent award for damages being made against the employer.