Employer liability and harassment in the workplace

The rights of women undoubtedly took centre stage in 2017, culminating in the #MeToo campaign being crowned Time Magazine’s person of the year. Women are finally finding their voices and announcing to the world that enough is enough. But it isn’t just movie moguls, celebrities and other perpetrators in general who risk coming under fire for mistreating women. Employers should also take heed: complacency can be costly. In the case of Liberty Group v M, a female employee resigned (twice!) in frustration at her employer’s failure to take her sexual harassment complaint seriously. It seems that the employee was sexually harassed by her employer on four separate occasions. She took various steps to address the matter, including:

• Confronting her manager directly;
• Informing one of the other managers, who reported the incident to HR;
• Contacting the company’s employee wellness centre to follow up on the progress of her complaint;
• Discussing the matter with a team leader, who persuaded her to withdraw her first attempt at resigning and allow the company another opportunity to resolve the matter.

When it became evident that the matter was still not being properly addressed the employee resigned (for the second time).  She then lodged a claim against her employer in terms of section 60 of the Employment Equity Act. The Labour Court held that the employer had failed to take reasonable steps to protect the employee against the sexual harassment. Consequently, the employer was ordered to pay the employee damages to the tune of R250,000.00. So what does section of the Employment Equity Act say? Section 60: Liability of Employers

1. If it is alleged that an employee, while at work, contravened a provision of this Act, or engaged in any conduct that, if engaged in by that employee's employer, would constitute a contravention of a provision of this Act, the alleged conduct must immediately be brought to the attention of the employer.
2. The employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct and comply with the provisions of this Act.
3. If the employer fails to take the necessary steps referred to in subsection (2), and it is proved that the employee has contravened the relevant provision, the employer must be deemed also to have contravened that provision. {our emphasis}

So it seems that section 60 renders employers complicit in their silence. If an employer fails to take “necessary steps” to resolve sexual harassment complaints, the employer contravenes the Employment Equity Act and risks hefty damages claims. To avoid suffering the same fate, employers are urged to:

• Implement a Sexual Harassment Policy; and
• Take prompt action to deal with every complaint received under that policy.

Please note that this information is supplied for general information and does not constitute legal advice. It is advisable for you to contact a legal practitioner for guidance in respect of your unique requirements.