23 January 2025
Sexual harassment cases in the workplace are intricate and sensitive matters, and, as such, employers must ensure that they conduct thorough investigations and gather as much information as they possibly can to competently deal with the matter. This is one of the most serious forms of misconduct that can take place in the workplace, as not only does it impact the victim, but also the working environment and its culture. Fortunately, our labour legislation and case law offer comprehensive guidelines for employers that deal with such occurrences.
- Sexual Harassment in the context of South African Labour Law:
In the groundbreaking case of J v M Ltd [1989] 10 ILJ 755 (IC), sexual harassment was interpreted as "unwanted sexual attention in the employment environment," emphasizing that such behaviour produces a hostile, unpleasant, and threatening work environment. Since then, this interpretation has grown to be an essential starting point for employers that are faced with sexual harassment cases in the workplace. This notion was further supported in McGregor v Public Health and Social Development Sectoral Bargaining Council and Others [2021],where sexual harassment was characterized as one of the most severe forms of misconduct in the workplace, one that undermines human dignity and creates barriers to equality. The Constitutional Court affirmed the severe nature of sexual harassment under South African law, stating that it affects the fundamental values of equality and human dignity in a workplace setting.
- The Code of Good Practice and Employment Equity Act on Sexual Harassment:
The primary objective of the Code of Good Practice is to eliminate sexual harassment in the workplace. Sexual harassment can involve unwanted physical, verbal, or nonverbal conduct, but is not only limited to these acts. This code confers a responsibility upon employers to establish and maintain a workplace where their employees' dignity is upheld and protected. Employers must create and enforce an environment within the workplace where victims of sexual harassment do not feel that their complaints or grievances are ignored or dismissed, nor should such victims find themselves in a position where they fear possible retaliation.
The Employment Equity Act (EEA) of South Africa aims to eliminate unfair workplace discrimination. Notably, Sexual Harassment is classified as a form of gender-based discrimination. The EEA expects employers to not only address, but also prevent sexual harassment in the workplace in order to encourage inclusivity and fair treatment, given that such conduct undermines dignity and equality in the workplace.
Employers are held vicariously liable for employee harassment under the EEA, irrespective of whether they were aware of the harassment or not. However, if an employer could prove that they have made adequate and reasonable attempts to prevent and address such conduct, the odds of employer liability may be reduced. Such attempts could include the implementation of clear anti-harassment policies and the establishment of adequate reporting procedures. Should an employer fail to comply, penalties may be imposed.
- Key Points on Evidence: What Employers Need to Prove and Their Duty to Act:
- Clear Evidence of Unwanted Conduct:
In accordance with the ruling in Mokoena and others v. Garden Art Ltd. [2008], sexual attention transforms into sexual harassment if it persists after the harassed employee has expressed that it is offensive, or if the offender ought to have known that the conduct was inappropriate. It is established that evidence must demonstrate that the behaviour was unwanted and unwelcome.
- The Impact on the Workplace Environment:
The psychological and environmental impacts of sexual harassment have been emphasized by courts. The J v M Ltd. [1989] 10 ILJ 755 (IC), verdict made it clear that a single event, if sufficiently severe in nature, may warrant dismissal for a first offence, highlighting the necessity of adequate evidence that the behaviour had a detrimental effect on the victim of the harassment, or the working environment and the workplace culture.
- The Employer’s Duty to Act:
Employers are required to act promptly to investigate allegations of sexual harassment and, if proven to be necessary, penalize the employee who is guilty of such conduct in the form of sexual harassment. The South African Code of Good Practice on the Management of Sexual Harassment Cases has also emphasized the necessity for employers to maintain a harassment-free work environment where employees feel safe and comfortable.
- Case Study:
J v M Ltd [1989] 10 ILJ 755 (IC): This case serves as a prime example of how an employer can take firm action when dealing with cases of sexual harassment. In this case, an Executive was dismissed after a disciplinary inquiry revealed that he had harassed several employees in the workplace. The Court found that employers have a duty to carry out in-depth inquiries and take swift, yet appropriate, action based on credible evidence and accurate data. This is further substantiated in the case of Mokoena v Garden Art Ltd (2008), where it was established that the onus is on the employer to determine if the conduct was unwanted and continued despite objections to the behaviour showcased. Moreover, the Court found that dismissal may be justified even where there is an isolated incident, especially if the employer could substantiate that the behaviour was considered offensive, unwanted, and had an impact on the victim of the harassment and/or the workplace.
- Conclusion:
Employers must be aware of the substantial weight of evidence required in sexual harassment claims. When there is clear evidence of inappropriate sexual behaviour that negatively impacts the victim of the harassment as well as the working environment, dismissal could be a reasonable and legally sound response to such conduct after conducting a procedurally fair disciplinary inquiry. Employers are further urged to implement and enforce anti-harassment and workplace safety policies. Clear guidelines are provided by South African case law and legislation to assist employers in making impartial and rational decisions regarding incidents of sexual harassment in the South African working environment.
Contact Invictus for guidance and assistance on navigating sexual harassment cases. Reach out to our office at 086 173 7263 or email us at admin@invictusgroup.co.za. Let us help you ensure your business maintains a safe and harmonious working environment.
