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SEXUAL HARASSMENT AND THE EMPLOYER’S RESPONSIBILITY
Flirtation with colleagues at work is commonplace. Yet, what one person might regard as a light flirtation, another might consider to be sexual harassment. These different perspectives could potentially create problems for the employer. The labour court has recently found in a well-publicized case, that the employer could be held liable for the actions of its employees if it does not intervene.
In the case in question, a woman security guard, Beauty Ntsabo, had been sexually harassed by her supervisor. About six months after she had started working, her supervisor suggested a relationship with him, started touching her body and one day locked her up in the guardroom, threatened her with a gun and indecently assaulted her.
According to the employee, she brought this to the attention of her employer who apparently did not take the matter seriously. After some time of inaction, the employer reassigned her to night shift. She was unhappy with this change and the fact that no further action had been taken against her supervisor. She handed in a letter of resignation, stating the problem with her supervisor as the reason. The employer apparently tore up this letter. She ultimately signed a letter of resignation based on wording suggested by the employer. She declared a dispute on the basis that she had been constructively dismissed. The court awarded an amount of R82000 in damages and compensation, not against the perpetrator, but against her employer, Real Security c.c.
There are several interesting aspects to this case.
First, the outcome of the case depended very much upon the credibility of the witnesses. As far as the alleged harassment was concerned, it depended on Beauty Ntsabo's word against that of her supervisor. The court rejected the supervisor’s version due to several inconsistencies and accepted Ntsabo’s version. The employer alleged that if the sexual harassment had taken place, it had not been reported. The court also rejected this evidence on the basis that the employer’s witnesses were not credible.
Second, although the employee resigned, it was regarded as a constructive dismissal. According to the court it was clear that the inaction of the respondent was unfair and created an intolerable working environment for the employee
Third, the court held the employer liable for the actions of the supervisor (on the basis of so-called “vicarious liability”). According to the court, the employer should have foreseen the development of a hostile and intolerable working environment in these circumstances.
A further interesting aspect is the award. Of the R82000, an amount of R12000 was awarded for unfair dismissal. This amount was based on 12 times her monthly salary of R1000. A further amount of R20000 was awarded for future medical expenses, in this case for psychological counselling. A further amount of R50000 was awarded for general damages, i.e. for the psychological trauma suffered.
The main conclusion to be drawn from this case is that employers must take any allegation of sexual harassment very seriously and must investigate the matter expeditiously. However, as matters of this nature are often delicate, one should guard against the “bull in the China shop” approach. The best way forward is to develop a policy on sexual harassment, with well-documented procedures to ensure that the matter is dealt with in a sensitive and structured way. Some form of staff training is also recommended.
Let’s reconsider another scenario for the Real Security case: If the employer had implemented a policy and procedures to deal with sexual harassment, it would firstly have reduced the chances of the sexual harassment occurring. If it nevertheless did take place, Beauty Ntsabo would have known what procedures to follow. If she failed to follow such procedures, she would not have been able to institute a claim against the employer. If she reported the matter in terms of the procedures, the employer would have been obliged to deal with the matter immediately and sensitively, substantially limiting the further trauma that Beauty Ntsabo might suffer and bringing the perpetrator to book.
The contents of a policy and procedure to deal with sexual harassment will be dealt with in a future contribution.
Author: Jan Truter of Labourwise.
Labourwise is an on-line labour relations service aimed at SMMEs to assist entrepreneurs to implement effective labour relations in small businesses. They can be contacted via www.labourwise.co.za or info@labourwise.co.za