The Employment Equity Act (EEA) prohibits sexual harassment of employees by other employees and holds the employer liable in such cases even if the employer does not know that the sexual harassment is going on. The courts have upheld this provision.
For example, in the case of Christian vs Colliers Properties (2005, 5 BLLR 479), two days after she started work, the owner of the business invited her to dinner and to sit on his lap. He also kissed her on the neck. After she objected to the owner’s conduct she was dismissed with two days’ pay and referred a sexual harassment dispute.
In a default judgement the Court decided that:
The employee had been dismissed for refusing the owner’s advances
This constituted an automatically unfair dismissal based on sexual discrimination
Newly appointed employees are as deserving of protection from sexual harassment as are their longer serving colleagues
The employer had to pay the employee:
24 months’ remuneration in compensation
Interest on the amounts to be paid
The employee’s legal costs
The above finding might lead employers to believe that, in order to protect themselves, they need to dismiss any employee found guilty of sexual harassment. However, this is not always so. For example, in the case of SABC Ltd VS Grogan (2006, 2 BLLR 207) a regional sales manager was dismissed for (amongst other things) sexual harassment after he had allegedly kissed a junior female colleague several times, given her love literature and had physical contact with her in his car.
An arbitrator later found that, while he was guilty of sexual harassment the level of seriousness of his conduct did not merit dismissal. This was largely because the alleged victim had not seemed to mind his advances very much and had said she thought he should not be dismissed. The arbitrator therefore ordered the employer to reinstate the employee. The Employer took this decision on review to Labour Court but lost again as the Court pronounced the arbitrator’s finding to have been properly thought out and justified.
In the case of Moboea vs AVBOB Mutual Assurance Society (2010, 5 BALR 524) a district manager was dismissed for sexually harassing a subordinate. He was found guilty of having had sexual relations with her and then threatening to fire her if she reported it. It was further alleged that the district manager’s wife, who was also a manager at the company, also threatened to dismiss the subordinate after discovering that she had been having sex with her husband. The arbitrator ruled that:
The district manager and his subordinate had been having consensual sexual relations for some time
There was no proof that the subordinate had been threatened
The dismissal was unfair
The district manager was to be reinstated with full retrospective effect.
The above case findings show that:
Employers cannot ignore sexual harassment of their employees and must act swiftly.
However, this neither means that every allegation is genuine nor that dismissal is appropriate in every case.
Employers need to use reputable labour law experts to assist with:
Deciding what the appropriate action should be in each individual case of sexual harassment
Designing a comprehensive sexual harassment policy
Ensuring that every owner, manager and employee knows and understands the severe consequences of committing such acts
Communicating to all concerned that such misconduct will result in severe penalties including possible dismissal
Ensuring that all employees feel entirely free to report sexual harassment.
Training all employees in the above listed issues as well as in what does and does not constitute sexual harassment, how to deal with it, where to report it and the company’s supportive policy towards sexual harassment victims.
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