SOUTH AFRICA: EMPLOYERS’ LIABILITY FOR SEXUAL HARASSMENT IN THE WORKPLACE
With the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace published earlier this year, harassment in the workplace is the subject of many training sessions, both on the shop floor and in boardrooms. The importance of this education cannot be overstated given how prevalent harassment is in our country, particularly sexual harassment.
On 10 November 2022, the Labour Appeal Court in Qheberha handed down the judgment Amathole District Municipality v CCMA in which the Court clarified the principles of dealing with cases of alleged sexual harassment in the workplace by an employer.
The complainant alleged that she was sexually harassed by her manager with whom she shared an office. She alleged that her manager subjected her to multiple acts of sexual harassment including a request that she perform oral sex on him. The complainant said she did not resist because she feared dismissal as her manager was senior and had authority over her. The manager denied the allegations and said the conduct was consensual.
The complainant informed her boyfriend of this harassment, and he advised her to report the matter failing which he would do so. The complainant reported the matter to a shop steward who referred the complainant to the human resources department (HR).
After the alleged sexual harassment ceased, the complainant lodged a grievance with HR. Around the same time the complainant was subject to negative reports from her manager relating to her work performance.
The grievance outcome was that no sexual harassment had occurred.
CCMA and the Labour Court
The complainant referred an unfair discrimination case in terms of the Employment Equity Act to the CCMA and claimed compensation for the unfair discrimination. The CCMA found that the complainant had indeed been subjected to sexual harassment and that there was no reason to believe that the complainant had fabricated the allegations. The CCMA found that the evidence of the shop steward corroborated that of the complainant, whilst the manager’s evidence was rejected as flimsy and unbelievable.
Moreover, the manager’s documentary evidence was rejected as selective and unauthenticated. Consequently, the employer was found to have failed to protect the complainant and was held liable to pay the complainant ZAR150 000 as compensation.
The Labour Court dismissed the employer’s appeal on the basis that it could not find anything impugnable with the award, and that as a court of appeal it lacked the ability to judge the credibility of witnesses.
Labour Appeal Court
From the record of the CCMA hearing, the Labour Appeal Court (LAC) found that the complainant was not truthful and had given contradictory testimony. At the CCMA the complainant testified that her manager had asked her for oral sex, which she refused and felt disgusted by the suggestion.
However, under cross-examination it was put to her that she had admitted that she performed the oral sex. The complainant denied this, and audio evidence was played to prove it. The uncontested evidence of the grievance chair corroborated this.
The LAC also found that the veracity of the complainant’s evidence tainted her credibility in that, during the period she was allegedly sexually harassed, she was sending flirtatious messages to her manager. Particularly, the court held that a message sent by the complainant to her manager on 24 March 2015 that ‘U know what I am hungry for u now serious sweety, what’s ur plan today.’ was irreconcilable with harassment and not indicative of unwelcome conduct.
The LAC upheld the appeal and held that the CCMA erred in excluding the documentary evidence as its authenticity was never in question. Moreover, the LAC held that the Labour Court erred in saying that it was not best placed to interfere with the credibility findings of the CCMA given the glaring contradictions on the record. The LAC further held that in order for liability to arise for an employer, the act of harassment must be immediately reported to the employer and the employer must have failed to take steps to protect the employee.
Why is this case important?
This judgment crystalises three important principles, which are important for employers to bear in mind.
First, the credibility of evidence regarding the alleged sexual harassment must be proven on a balance of probabilities and not simply be taken for granted (as happened in this case).
Second, the credibility of witnesses must be carefully assessed. In this regard, their demeanour is important but so too other evidence regarding the surrounding circumstances.
Third, the employer’s liability for damages or compensation flowing from sexual harassment in the workplace is not automatic. It has to be established that the employee reported the alleged harassment and that the employer failed to take steps to protect the employee from such harassment for liability to occur.