An employer’s obligations June 2017

By DAPHNEY WILLEM, Published in Employment Law

On 7 March 2017, Liberty Group Limited v M (JA105/2015) [2017] ZALAC 19 (7 March 2017) the Labour Appeal Court handed down a judgment in terms of which it found Liberty Group Limited liable under s60 of the Employment Equity Act (EEA) for having failed to take reasonable steps to protect an employee on becoming aware of her sexual harassment at work by her immediate line manager, a Mr Andrew Mosesi.

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Section 60(1) of the EEA provides that if it is alleged that an employee, while at work, contravened a provision of the EEA, or engaged in conduct that, if engaged in by their employer, would constitute a contravention of a provision of the EEA, the alleged conduct must immediately be brought to the attention of the employer.

The employer must consult all relevant parties and take the necessary steps to eliminate the alleged conduct and comply with the provisions of the EEA.

In the Liberty Group case, despite being advised of the sexual harassment, the manager merely dismissed the employee's complaint and informed her that she should consult Liberty's sexual harassment policy to determine whether the conduct complained of amounted to sexual harassment and, if it did, the requirements to lodge such a complaint.

The employee eventually resigned on 13 October 2009, citing an intolerable working environment because Liberty management had failed to address her complaint of sexual harassment.

The employee referred an unfair discrimination dispute to the CCMA. After the CCMA ruled it lacked jurisdiction to determine the dispute at arbitration, the employee then referred the matter to the Labour Court.

The Labour Court found that Liberty "was made aware of the sexual harassment before the employee resigned and failed to take the necessary steps then".

Liberty took the matter on appeal on the basis that the Labour Court failed to apply s60 of the EEA correctly. The Labour Appeal Court held that the EEA requires every employer to promote equal opportunity in the workplace and ensure that no person unfairly discriminates, directly or indirectly, against an employee, in any employment policy or practice on one or more grounds, which includes harassment. It is trite that harassment is a form of unfair discrimination in s6(3). The EEA recognises that such conduct poses a barrier to the achievement of substantive equality in the workplace by creating an arbitrary barrier to the full and equal enjoyment of an employee's rights, violating that person's dignity and limiting their right to equality at work.

The LAC highlighted that the debate surrounding the employer's liability arising from s60 has often turned on whether the reference to an employer's obligation "to ensure that the employee would not act in contravention of this Act" is intended to mean that the employer take steps in advance to eliminate future conduct.

Savage AJA favoured the the approach required by s60 of the EEA in Biggar v City of Johannesburg, Emergency Management Services [2011] 6 BLLR 577 (LC). Here, the court found a breach of s60 in that the employer failed to take all necessary steps to eliminate racial abuse perpetrated by its employees, and failed to do everything reasonably practicable to prevent continued harassment.

Where the complaint raised is one of sexual harassment, the LAC held that the requirements for an employer's liability to arise under the EEA were:

  1. the sexual harassment conduct complained of was committed by another employee;
  2. it was sexual harassment constituting unfair discrimination;
  3. the sexual harassment took place at the workplace;
  4. the alleged sexual harassment was immediately brought to the attention of the employer;
  5. the employer was aware of the incident of sexual harassment;
  6. the employer failed to consult all relevant parties, or take the necessary steps to eliminate the conduct will otherwise comply with the provisions of the EEA; and
  7. (vii) the employer failed to take all reasonable and practical measures to ensure that employees did not act in contravention of the EEA.

The LAC found that the employee's report of the sexual harassment to the manager constituted a report as required by s60(1). Liberty failed to act on the complaint in accordance with s60(2).

Liberty was ordered to pay the employee R250 000 in damages.

Willem is an Associate with Fasken Martineau (South Africa). The article was overseen by Melanie Hart, a Partner.