Articles

Employer has duty to act against sexual harassment

Sunday Times 3 May 2009
By Felicia van Rooi & Jean Ewang

Sexual harassment is defined as unwanted conduct of a sexual nature. Our labour legislation places a duty on employers to ensure that complaints of sexual harassment are properly dealt with. Failure to do so may lead to the employer being held vicariously liable for the acts of sexual harassment committed towards its employee/s.

The Employment Equity Act (EEA) read together with the Amended Code of Good Practice on the Handling of Sexual Harassment sets out the employers’ obligations when faced with a sexual harassment complaint. The code also sets out the guidelines that an employer should follow in order to prevent sexual harassment in the workplace and the steps to follow when presented with a sexual harassment complaint. In addition, the code stipulates that employers should have a sexual harassment policy in place.

The employers' obligations when a complaint of sexual harassment is brought to its attention are threefold. It is to consult with all relevant parties, address the complaint in terms of the code and the employers' sexual harassment policy, and take steps to eliminate sexual harassment. Employers have a duty not only to deal with complaints of sexual harassment committed by one employee against another, but also with complaints of harassment committed by an outsider against an employees in the workplace. The EEA provides that should an employer fail to fulfil its obligations and it is proved that its employee/s committed sexual harassment, then the employer is deemed to have committed sexual harassment. In addition to this, the constitutional right to fair labour practices also requires an employer to adequately deal with complaints of sexual harassment which are not committed by its employee/s but by an outsider. Failure to do so may open the employer up to a possible monetary claim for damages.

A case in point is Piliso vs Old Mutual Life Assurance. An Old Mutual employee found a photograph of herself with a crude note written on it at her workstation. The following day a similar note was affixed to her workstation. She reported the incident to management. The employee felt that Old Mutual did not adequately deal with her complaint and referred the matter to the Labour Court. The Court agreed with the employee and found that there was a duty on the employer to adequately and speedily investigate her complaint, and to provide assistance to the affected employee in the form of adequate counselling, something which Old Mutual failed to do. It awarded damages of R45 000 against Old Mutual.

An employer should ensure that it complies with the obligations imposed by the law in order to avoid finding itself paying for the perpetrator’s behaviour.

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Felicia van Rooi

Partner
011 775 6389
E-mail Felicia van Rooi

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Jean Ewang

Associate
011 523 6142
E-mail Jean Ewang