Consequences for the Employer – Sexual Harassment and constructive dismissal.

In the age of #metoo and the like, it is important for employers to know and understand their roles and duties in safeguarding employees from sexual harassment which in turn mitigates claims relating to constructive dismissal.

What is constructive dismissal?

Constructive dismissal is defined as a dismissal where an employee terminated their employment because the employer made continued employment intolerable for the employee. This means that the employee cannot spend any more time at their place of employment as the employer has made the conditions so bad that they cannot perform their duties anymore.

The key to proving constructive dismissal is the “intolerable” element. One of the most common forms of this element is sexual harassment that was not acted upon by the employer. When we mean not acted upon, it means that no steps were taken to assist the employee that has complained about the conduct to the company.

Worst case scenario?

To illustrate this, we take a look at the matter of Liberty Group Limited v M (2017) 38 ILJ 1318 (LAC) where the Labour Appeal Court found that the Company had not acted or even tried to assist an employee complaining, of four incidents of sexual harassment. This resulted in the company being held liable for a substantial amount of compensation due to their inaction.

What went wrong?

In the above case, the employee reported her grievance to a superior, who dismissed it and referred her to a sexual harassment policy without assisting her or meeting with her. The court’s problem with this action or lack thereof was that this was not sufficient to assist the employee or address the matter at all. The next place she reported the conduct was a helpline, which did not offer any assistance. This led to the employee’s eventual resignation and claim for constructive dismissal.

How do we identify it and prevent a claim against the company?

Sexual harassment has four distinct factors:

  1. Harassment on prohibited grounds relating to sexual orientation and/or gender;
  2. Sexual conduct that was unwelcome;
  3. The nature and extent of the sexual conduct; and
  4. Impact of the sexual conduct on the employee.

If the conduct complained of falls within the above factors, the employer must take steps towards investigating the matter.

What must be done?

The Employment Equity Act places a duty on the employer to conduct an investigation and will hold the company liable for not performing their duties adequately.

In order to discharge their duty, this investigation must be done in the following suggested manner:

  1. The accused employee should be suspended in order to conduct the investigation, especially when the complainant is a subordinate;
  2. Interviews must be conducted with both parties in separate meetings in order to obtain their evidence and statements must be taken;
  3. The evidence and statements need to be investigated for authenticity; and
  4. A Disciplinary inquiry should be held once all the evidence has been verified.

The above list is a suggestion that should be taken under strong advisement and the above investigation should also be conducted by a senior manager or H.R. representative.

Should the chairperson of the disciplinary inquiry find that the complaint is valid, this conduct is seen in a serious light as it infringes on an employee’s basic human rights and is dismissible in nature.

Therefore, all companies need to be mindful of these allegations and approach same with the seriousness they deserve and be consistent in the application of sanction in respect of the conduct. Companies need to have appropriate measures in place in order to assist employees and prevent any and all conduct of this nature, as the company is ultimately responsible for the safety and security of their employees, male and female alike.

Should you require any assistance or more information regarding sexual harassment and other similar matters, please contact Invictus on 0861 737 263.

An employer has the right to discipline employees for fair reasons whilst following a fair process. Sometimes, when faced with disciplinary action, an employee elects to resign from the company as a way to avoid such disciplinary action taking place. There has been much uncertainty about whether or not an employer can discipline an employee after they have resigned with immediate effect.

On 24 May 2019, in a case of Tristyn Naidoo and Sedayshun Naidu v Standard Bank SA Ld and SGB Securities (Pty) Ltd, the Labour Court ordered that an employer does not have the right to discipline employees who have resigned with immediate effect before the date of a disciplinary inquiry scheduled for their misconduct.

The employment relationship between parties can be terminated lawfully for a number of reasons, one being resignation by an employee, who will be required to provide their employer with notice in terms of their contract of employment, or the appropriate governing legislation. Where an employee resigns with immediate effect, they are in breach of their contractual obligations to provide appropriate notice to the employer.

Notice periods with resignations are important to enable an employer to fill the position left open and ensure an effective handover.

The Standard Bank case thus stated that should an employee resign with immediate effect, and should the employer wish to discipline such employee notwithstanding such resignation, they should approach the courts. The employer would in such circumstances have a right to refer a case of breach of contract against the employee.

Where an employee has breached the contract of employment by resigning with immediate effect, the employer has two options: Firstly, they may claim specific performance from the employee (hold the employee to the notice period), or accept the resignation without notice, cancel the employment contract, and claim damages from the employee. In situations such as this, the employer would need to claim specific performance from the employee, being fulfilment of the notice period. According to this case, without first approaching the court, the employer does not have a legal basis for disciplining the employee after they have resigned with immediate effect.

Previous case law provides conflicting decisions on the matter. In Coetzee v Zeitz MOCCA Foundation Trust and Others (2018) 39 ILJ 2529 LC, the Labour Court stated that an employment contract can only be terminated without notice where a material breach has first taken place.

In a situation where an employee resigns without notice, and no preceding breach of contract has taken place, and the employer does not accept the resignation with immediate effect, the employee’s contract of employment only comes to an end at the end of the notice period.

The Coetzee case stated that an employee is contractually and statutorily bound to give notice to their employer. The court stated that there is furthermore no legal reason why a company may not discipline an employee who has resigned with immediate effect.

The current situation remains uncertain as to whether an employee can be disciplined after resigning with immediate effect due to contrary court decisions. However, given the latest court case, it appears that an employer cannot discipline an employee who has resigned with immediate effect, but can rather pursue the employee in court for breach of contract, and claim specific performance.

Should you require any assistance or more information regarding the resignations and disciplinary actions, please contact Invictus on 0861 737 263.

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