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Employers need to be aware that their employees have legal recourse if the employees have been sexually harassed/assaulted in the workplace, and the employer failed to address it.

Previously, it was thought that employees could only follow the avenue outlined in the Labour Relations Act (LRA) and Employment Equity Act (EEA). This would entail lodging a constructive dismissal case at the Commission for Conciliation, Mediation and Arbitration (CCMA) on the basis of unfair discrimination. However, a recent High Court case, Phil-Ann Erasmus v Dr Beyers Naude Local Municipality and Xola Vincent Jack, demonstrated that employees can also take their employers to court, claiming illegal dismissal (delict).

The LRA states that employees who find themselves in a similar position can lodge a constructive dismissal claim at the CCMA. This is where the employee resigns due to the employment relationship becoming intolerable. Due to the employer’s actions or lack thereof, the employee feels forced to make this decision and therefore the resignation is not entirely voluntary. The EEA outlines that sexual harassment/assault qualifies as a kind of unfair discrimination. This means that employees who experience sexual harassment in the workplace are entitled to the same remedies to which the EEA entitles everyone who experiences unfair discrimination.  Therefore, employees who are sexually harassed at work where their employer fails to take any restorative action can lodge a case at the CCMA concerning their constructive dismissal on the basis of unfair discrimination.

However, the Plaintiff in the above case took a different route – claiming not only unfair discrimination/dismissal but delict. Phil-Ann (the Plaintiff) was formerly employed by the Municipality and was sexually assaulted by her line manager. She developed Post Traumatic Stress Disorder (PTSD) due to the incident and eventually resigned, feeling that the work environment had become intolerable.  As part of her case, she claimed for damages of over R4 million, made up of past and future medical expenses, past and future loss of income, etc.

The following failings of the Municipality are important for employers to note, as it will help them to avoid similar mistakes. During the proceedings, it was found that the employer did not:

  • Suspend the perpetrator during the investigation or pending the enquiry, and they did not have a fair reason for this decision.
  • Ensure that the perpetrator and Plaintiff would not have contact.
  • Prioritise disciplining the perpetrator (the hearing was more than 6 months after the incident).
  • Impose a severe enough sanction on the perpetrator – they only gave him 2 weeks’ unpaid suspension.
  • Provide the Plaintiff with a safe working environment.
  • Appreciate its legal obligation with regards to the safe working environment.

To avoid responsibility for the above, the employer tried to argue that this was a matter for the Compensation for Occupational Injuries and Diseases Act, but this was rejected by the court. The perpetrator and the employer were found jointly and severally liable to pay the Plaintiff’s damages.

As such, employers must be aware that the above are the legal expectations concerning instances of sexual assault/harassment in the workplace.

Additionally, a Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace was gazetted in March 2022 in South Africa. This Code acts as a guideline for employers, explaining that employees subject to workplace discrimination are eligible for both the claims summarized in the EEA and LRA and for delict.

As such, it is vital for employers to uphold their duty and show respect and concern for employees who are victims of discrimination in the workplace and provide a safe working environment.

Reference List: 

  • Phil-Ann Erasmus v Dr Beyers Naude Local Municipality and Xola Vincent Jack (2021) 42 ILJ 1545 (ECG)/ (2021) 32 SALLR 6 (ECG) REPORTED CASE.
  • PE v Ikwezi Municipality and Another 2016 (5) SA 114 (ECG).
  • Ntsabo v Real Security CC 2003 24 ILJ 2341 (LC).
  • Labour Relations Act, 66 of 1995.
  • Employment Equity Act, 55 of 1998.
  • South African Labour Law Reports 2021 37th Annual Seminar-B van Zyl.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

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