Work In Solutions

Issue: Unfair discrimination claim arising from sexual harassment or victimization of employee by employer.  Court must determine the liability of the employer arising from the conduct of its employee. In doing so the court had to determine whether the employer should have taken further steps to address the complaint of sexual harassment. The court held that the employer acted appropriately and that not every complaint of sexual harassment would involve a dismissal. The application was dismissed.

Summary of Facts: Employee (Mrs Potgieter), the former data processing clerk of the employee, was sexually harassed by another employee, (Constable Mafodi) of the employer (National Commissioner of SAPS) and this incident occurred at the workplace and during working hours. The employee reported these instances to her employer, the most severe incident being that “he tried to kiss her”. She reported the incident to a Captain Swanepoel, who insisted that she make a statement to the effect. The employee alleged that there was a lack of progress and repeatedly approached Swanepoel in this regard. The employee alleged that when doing so, he victimized and ridiculed her. She also alleged that she was requested to withdraw the charges, by a certain Reddy and on refusing to do so she was loaded with work and her maternity leave form was not signed. A disciplinary enquiry was held where Mafodi was charged and found guilty of sexually harassing the employee and was fined R600 half of which was suspended, in terms of the employer’s disciplinary regulations. Mafodi was not suspended and the employee was transferred to another department on the request of herself and a social worker. The social worker’s report indicated that Swanepoel had not kept the matter confidential, and in response to this he was given a written warning. She resigned from the place she had been transferred to, due to one of the employee’s encouraging her to have an affair with a certain member of the public, this however remained unreported. The employee contended the following: dealing with Mafodi had been delayed, her complaint was not kept confidential, Mafodi was not removed from the work place, the sanction imposed was too lenient, Swanepoel called her names which had sexual connotations and she was not timeously referred for assistance. Her complaint in essence was that the employer had failed to comply without its own policy.

Summary of Judgment: The issue for determination was whether the employer was liable for the conduct of its employee (Mafodi). Section 60 of the EEA sets out certain requirements which must be met before liability can be established, namely whether: 1)sexual harassment was committed by another employee; 2)sexual harassment must constitute unfair discrimination; 3)must take place at workplace; 4)incident immediately brought to attention of employer; 5)employer aware of incident and employer failed to consult all relevant parties or take necessary steps to eliminate conduct and 6)employer failed to take all reasonable and practical measures to ensure employees don not act in contravention of EEA.  The employees claim was based on S 5 EEA which imposes a duty on employers to take positive steps to ensure promotion of equal opportunities by eliminating unfair discrimination in any employment policies. S 6(3) EEA prohibits unfair discrimination in the form of sexual harassment, harassment constitutes discrimination and if discrimination is ito of a ground in S 6(1) it is automatically unfair. .Mafodi was charged and found guilty of sexual harassment at the disciplinary enquiry, thus it constituted automatically unfair discrimination. The court was of the view that the first three requirements had been met and thus only the last three instances had to be looked at. The incident was reported thus the court was satisfied that that the employer was aware of the incident, leaving only the last two issues relevant for the determination of the liability of the employer.  It was undisputed that the employer had not failed to consult with parties or take necessary steps. The court held in this respect that the delay in finalizing the hearing was not unreasonable nor due to an ulterior motive of the employer. It was also held that the issue of sanction imposed at the disciplinary hearing was irrelevant. The rights of the employee were not dependant on the dismissal of Mafodi, since she could still claim even if he was dismissed. The court noted that the chairperson of the disciplinary enquiry had taken into account the disciplinary regulations. The court held that there is no general rule that suspension or removal from the workplace is automatic in every sexual harassment complaint. It was held further that the nature and the extent of the harassment may indicate whether this would be a necessary step. The other instances of sexual harassment were never reported by the employee and thus could not be dealt with by the employer. The court held that the issue which had arisen in respect to signing the maternity leave form, had nothing to do with the sexual harassment complaint and was caused by her transfer on her request. In respect to the issue of confidentiality, the employee did not report this to the employer and had only become aware of this through a social worker’s report, and on receipt of this Swanepoel was disciplined which was in line with the social worker’s recommendation. The court did state though that Swanepoel should have known that what he did was wrong or exposed the employee to risk, but was of the opinion that the steps taken against him were appropriate. The essence of the employee’s case was that the employer failed to implement its own disciplinary code and also the circular. The court held, that in terms of the circular there was no evidence that the employee suffered prejudice due to the disciplinary hearing being chaired by a male and not a female, as in the view of the court it was no mandatory to do so. Its reasoning for the above was that, disciplinary codes are guidelines that should generally be followed unless there are reasons for failing to do so, thus in essence it must be in accordance with justice. In respect to the other incidences of sexual harassment, they had not been reported and thus could not have been dealt with by the employer. In light of the above reasons the court dismissed the employee’s contentions and the application was dismissed without costs.