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16 Days of Activism | Crucial steps for workplace sexual harassment victims

The Global 16 Days Campaign – which runs annually from November 25th (International Day Against Violence Against Women) to December 10th (International Human Rights Day), reinforces the recognition of violence against women as a human rights violation. Sexual harassment in the workplace forms part of this.

While many of us may still be working from home, the risk of sexual harassment remains both in a virtual and physical work environment.

How much liability does an employer have if an employee is found guilty of sexually harassing another staff member?

Employment Law experts at Cliffe Dekker Hofmeyr say that although employers are legally obligated to take appropriate measures to eliminate unfair discrimination in the workplace, the reach of vicarious liability needs careful consideration.

Employees who are subjected to sexual harassment, in the course of performing their duties, whether in the workplace, work events, or even at a client's premises, must comply with internal policies relating to the reporting of sexual harassment and report as soon as possible. Employers also have a responsibility to investigate the allegations and take necessary steps.


Employee reporting obligations when seeking to hold an employer liable for sexual harassment in the workplace

While employers have a statutory obligation to eliminate unfair discrimination in the workplace, an employer cannot be held liable for sexual harassment perpetrated by one of its employees if the employee who seeks to hold the employer liable has not discharged their obligations under section 60 the Employment Equity Act 55 of 1998 (Act).

The reporting obligations of an employee who is subjected to sexual harassment in the workplace and who seeks to hold the employer liable were considered in the recent decision of the Labour Court in National Union of Metal Workers of South Africa and Another v Passenger Rail Agency of South Africa JS1071/18 (23 September 2021). While the court stressed at the outset of the judgment that sexual harassment is "heinous and horrendous conduct since it undermines the dignity of women and the values enshrined in our Constitution", it did not uphold the employee's claim, which sought to hold the employer liable for the acts of sexual harassment perpetrated by two of its employees.

The case turned on the application of section 60 of the Act, which the court viewed as a codification of the common law principle of vicarious liability i.e. where the wrongful acts of an employee during the course and scope of employment are attributed to the employer. Based on the undisputed evidence of the employee, the court found that the employee had been sexually harassed by two of her managers. Having made this finding, the court then considered the circumstances under which an employer is deemed to be a perpetrator of unfair discrimination under section 60 of the Act, notwithstanding the fact that an employee committed the sexual harassment and not the employer.

The court set out the steps of a section 60 claim as follows: (i) allege a contravention at the workplace, (ii) report the contravention immediately, (iii) prove the alleged contravention, and (iv) allege and prove the employer's failure to take the necessary steps. If an employee proves all four, they are entitled to a deeming order of liability. In order to escape liability, an employer must prove that it took the necessary and preventative steps.

Reporting obligations and timing

Having found that the employee was subjected to sexual harassment, the court considered the second step and the employee’s reporting obligations. In terms of section 60 there is an obligation to ensure that there is an "immediate bringing to the attention of the employer". As soon as allegations of sexual harassment have been reported to an employer it has an obligation to eliminate the conduct. Given this resultant obligation on the employer, the court found that an employee must act with the necessary haste. In this instance, there was a dispute as to whether the employee reported the contravention immediately. The court referred to the decision of the Labour Appeal Court in Liberty Group v M.M (JA 105/2015) (7 March 2017) in which the court suggested that the word "immediate" must be afforded what it termed a "sensible meaning", and that a limited delay in reporting would be acceptable (a delay of two months in the Liberty matter).

The court found that, on the employee's own version, she only brought the managers' conduct to PRASA's attention on 28 November 2016 when she lodged a formal grievance. This was some two to three years after the sexual harassment took place. The court found that this could not be construed as a limited delay, as contemplated and found to be acceptable in Liberty. In this instance and given the delay, the court found that PRASA had been deprived of its statutory duty to eliminate unfair discrimination. The sexual harassment was not immediately brought to the attention of PRASA within the contemplation of section 60(1) of the Act. As a result, the employee failed to demonstrate step (ii), as set out above.

Having made this finding, the court turned to address the related matter of whose attention the conduct was brought to. Sec