Section 6 of the Employment Equity Act prohibits unfair discrimination by any person against an employee and specifically includes harassment as a form of unfair discrimination. Section 60 provides that an employer may be held liable for damages if it cannot prove that it did all that was reasonably practicable to ensure that the unfair discrimination did not take place. Our courts have held that, practically, this section requires that an employer ensure that it is in a position to prove that it was proactive in its approach and made attempts in advance to eliminate future discrimination.
In the recent case of Rustenburg Platinum Mines Limited v UASA obo Steve Pietersen, the Labour Court provided much needed clarity on this issue. The facts of the case were as follows: The employer dismissed Mr Pietersen for sexual harassment pursuant to a disciplinary hearing. During the hearing, Ms Kgole, who was employed as a boiler maker, alleged that Mr Pietersen, who was employed as a senior engineering specialist, had sexually harassed her over several years. The first incident took place at an event where Mr Pietersen asked Ms Kgole how she survived on her salary and suggested that they could live together so that he could help her pay for her expenses and eventually sleep together. Ms Kgole rejected these suggestions. Ms Kgole alleges that thereafter, Mr Pietersen suggested that they sleep together at least twice a month. Ms Kgole gave evidence that she told Mr Pietersen to stop in the hope that he would do so. She did not report the sexual harassment to her employer because she did not believe it would assist her and she was concerned that his life would be ruined and his wife would be negatively affected because she worked for the same employer. She, however, complained to her colleagues and to her husband, who ultimately laid the complaint of sexual harassment against Mr Pietersen on her behalf. Mr Pietersen denied the allegations against him and alleged that Ms Kgole had fabricated the whole story because she had a grudge against him because he had previously disciplined her. Mr Pietersen was found guilty of sexual harassment and he was summarily dismissed.
Mr Pietersen referred an unfair dismissal dispute to the CCMA. The CCMA commissioner found that Mr Pietersen’s conduct did not constitute sexual harassment and ordered that he be reinstated with back pay. The Commissioner found that the comments made by Mr Pietersen during the first incident did not constitute sexual harassment but rather appeared, at best, to depict a love proposal. The Commissioner found that there is nothing untoward when one employee proposes love to another employee, regardless of their positions. The problem arises where the love proposal is unwelcome and that is communicated, whereafter it persists. The Commissioner concluded, in the absence of any evidence, that Ms Kgole had failed to communicate to Mr Pietersen that his comments / conduct was unwelcome and that her docile approach during the first incident was material to Mr Pietersen’s future conduct.
The employer took the CCMA’s decision on review to the Labour Court. The Labour Court was scathing in its decision to review and set aside the CCMA’s award and referred to the Commissioner’s findings as insensitive, patriarchal and misogynistic.
“A workplace is exactly that and should not ordinarily be confused with a “find me love” sanctuary or a lonely hearts club for love sick employees.”
The CCMA Commissioner found that in order to maintain credibility, the complainant is required to report the incident within a reasonable time period. The Court disagreed and heldthat those who are sexually harassed react to their own ordeals and circumstances differently, and in most instances, long after the fact. This may be due to a number of factors including paralysis, fear of a backlash, feeling pity for the harasser, and/or having to substantiate the allegations in public proceedings under relentless and unsympathetic cross-examination. The inability to recall events with specifics is not an unusual phenomenon and does not mean that the incident / incidents did not place.
It is clearly critical that employers ensure that they are taking the necessary steps to prevent sexual harassment within the workplace. These include implementing a sexual harassment policy and having regular training and / or discussions to ensure that all employees understand the definition and consequences of sexual harassment. With the right legal input, these are simple and inexpensive steps to take to proactively prevent sexual harassment, and protect the employer should it nonetheless occur.
Jacqui has a BA, Honours in English and LLB from WITS and an LLM from UJ. She was admitted as an attorney in 2005 after having completed her articles at Webber Wentzel where she rose to the level of associate in the Labour department. Jacqui subsequently joined Bell Dewar Hall (now Fasken) and Deneys Reitz (now Norton Rose) as an associate and ENS Africa as a senior associate in their Labour departments before moving to the Johannesburg Bar in 2012 specialising in Labour Law. She left the Bar in 2017 to focus on her consulting practice and joined Caveat in 2018.