Article by Umhlanga Attorney: Fawzia Khan
Sexual Harassment in the Workplace? The Employer Company is duty bound to protect their employees
All employees are protected by the Employment Equity Act 55 of 1998 (EEA) from being sexually harassed by a co-worker. Sexual harassment in the workplace is defined as the unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace. In terms of this Act the employer is forced to take a firm stance against any employee, regardless of their seniority within the corporate structure of the company, from sexually harassing another co-employee. The employer is required to take all reasonable steps to protect its employees in this regard. Failure to do so could result in the company facing a claim of unfair discrimination. The EEA requires every employer to promote equal opportunity in the workplace and ensure that no person unfairly discriminates, directly or indirectly, against an employee, in any employment policy or practice on one or more grounds, which include harassment.
In March 2017, the Labour Appeal Court, found that a large corporate employer company Liberty Group Holdings had breached the provisions of the EEA when it failed to protect one of its employees MM, an insurance clerk who was forced to resign after her complaints of being sexually harassed by her manager was ignored. The employer company in that case had its own sexual harassment policy in place, where it undertook to “eliminate all forms of sexual harassment in the workplace”, “maintain a workplace free of sexual harassment”. After she resigned MM took her case to the CCMA and later to the Labour Court. She was able to successfully prove the sexual harassment claim by her senior manager against her.
The Labour Court found that the employer company “was made aware of the sexual harassment before the employee resigned and failed to take the necessary steps then”. Liberty Group Holdings took the Labour Court’s decision on appeal, claiming that MM’s claim was “frivolous and vexatious and without merit”. The Labour Appeal Court voiced its displeasure at the employer company, whom it said launched “a vicious and sustained attack on the ex-employee by attacking her motives, credibility and the reliability of her evidence, who through their legal counsel subjected the employee to three days of unacceptably harsh, cruel and vicious cross-examination. By this the court meant that she became victim to unwarranted and unjustified secondary harassment at the hands of the employer. The Labour Appeal Court re-affirmed the Labour Court’s earlier decision and found that the employer’s conduct in failing to protect the employee from sexual harassment amounted to unfair discrimination as defined in the EEA. It ordered Liberty Group Holdings to pay the woman the sum of R250 000,00 in compensation.
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