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Sexual Harassment and Employer Liability: A Critical Analysis of the South African Legal Position

Published online by Cambridge University Press:  20 September 2010

Mohamed Alli Chicktay
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Abstract

On 27 April 1994 South Africans adopted a new constitution, with founding values of dignity, equality and freedom. Despite the new constitution, the majority of women remain victims within the workplace. They still find themselves a minority within senior management and are often subjected to sexual harassment. Women are either denied work opportunities for refusing to give in to a perpetrator's sexual advances or they are forced to work in an unpleasant environment that severely infringes on their dignity. There are five legal options available to victims of sexual harassment within the South African workplace. These are claims against the employer for: vicarious liability; automatically unfair dismissal; unfair labour practices; failing to create a safe working environment; and violating the Employment Equity Act. This article examines the strengths and weaknesses of these legal actions. It also makes further suggestions aimed at curbing workplace sexual harassment within South Africa.

Type
Research Article
Information
Journal of African Law , Volume 54 , Issue 2 , October 2010 , pp. 283 - 297
Copyright
Copyright © School of Oriental and African Studies 2010

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References

1 Y Geyser “We became the bad women: We created all of the chaos” (2007) August HR Highway 48 at 48.

2 Huda, S “Sexual harassment and professional women in Bangladesh” (2003) 52 Asia-Pacific Journal on Human Rights and the Law 54 at 54Google Scholar.

3 Id at 55.

4 Wet, C De “The voices of victims of sexual harassment” (2008) Education as Change 109 at 110CrossRefGoogle Scholar.

5 Swinney, G “Effect of sexual harassment on the economy” (2006/2007) Human Capital Management 164 at 164Google Scholar.

6 Ibid.

7 Scherlen, R “NAFTA(ization) of sexual harassment: The experience of Canada, Mexico and the United States” (1997) 3 NAFTA: Law and Business Review of the Americas 96 at 96Google Scholar.

8 Ibid.

9 The Republic of South Africa Act 200 of 1993 was replaced by the Constitution of the Republic of South Africa Act 108 of 1996 (the South African Constitution).

10 The values of equality and dignity are mentioned in sec 1 of the South African Constitution and rights to equality and dignity are specifically protected in secs 9 and 10.

11 Sec 9 of the South African Constitution provides:

  1. (1)

    (1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

  2. (2)

    (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

  3. (3)

    (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth.

  4. (4)

    (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

  5. (5)

    (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.”

12 Loots, BE “Sexual harassment and vicarious liability: A warning to political parties” (2008) 1 Stellenbosch Law Review 143 at 151Google Scholar.

13 Speas, A “Sexual harassment in Mexico: Is NAFTA enough”(2006) 12 NAFTA: Law and Business Review of the Americas 10 at 10Google Scholar.

14 Loots “Sexual harassment and vicarious liability”, above at note 12 at 151.

15 Convention C111 of 1958.

16 For more on the ILO and sex discrimination, see: Antwi, EA “Women in the world of work: After eighty-six years, has the International Labour Organization done enough to promote equality?” (2006) 31 International and Comparative Law Journal 793Google Scholar.

17 Speas “Sexual harassment in Mexico”, above at note 13 at 151.

18 This section states: “Everyone has inherent dignity and the right to have their dignity respected and protected”.

19 S v Makwanyane 1995 (3) SA 391 (CC) at para 328.

20 Loots “Sexual harassment and vicarious liability”, above at note 12 at 149.

21 Sexual harassment also violates sec 23(1) of the South African Constitution, which provides: “Everyone has the right to fair labour practices”. See notes 78 and 79 below. In Piliso v Old Mutual Life Assurance Co (SA) Ltd and Others (2007) 28 ILJ 897 (LC) the Labour Court indicated that an employee's right to “fair labour practices” had been violated where the employer failed to protect an employee who had been the victim of sexual harassment in the workplace. The Labour Court indicated that, where an employee is traumatized in the workplace, the legal convictions of the community require the employer to conduct a thorough investigation to try and find the perpetrator, to support the employee through counselling so as to minimize the psychological trauma suffered by her, to communicate regularly with the employee about her needs and to do everything reasonably possible to prevent the incident from reoccurring. For analysis of this judgment, see A Van Niekerk Labor@Work (2008, LexisNexis Publishers) at 142.

22 For analysis of the South African definition of sexual harassment, see Basson, A “Sexual harassment in the workplace: An overview of developments” (2007) 3 Stellenbosch Law Review 425 at 425Google Scholar.

23 2005genN 1357 in 27865 of 4 August 2005.

24 Sec 5(3)(1)(1) of the Code.

25 Id, sec 5(3)(1)(2).

26 Id, sec 5(3)(1)(3).

27 Sec 5(3)(2)(1) of the Code provides: “Victimization occurs where an employee is victimized or intimidated for failing to submit to sexual advances”.

28 Sec 5(3)(3)(2) of the Code provides: “Quid pro quo harassment occurs where a person such as an owner, employer, supervisor, member of management or co-employee, influences or attempts to influence an employee's employment circumstances (for example engagement, promotion, training, discipline, dismissal, salary increments or other benefits) by coercing or attempting to coerce an employee to surrender to sexual advances. This could include sexual favoritism, which occurs where a person in authority in the workplace rewards only those who respond to his or her sexual advances”.

29 Id, sec 5(3)(2).

30 Id, sec 5(3)(3).

31 Id, sec 5(3)(1)(1).

32 Id, sec 4(2). According to Robert Husbands, “where to draw the line between acceptable flirting and unwelcome, offensive conduct is not always obvious. The conduct itself may not be inherently offensive for many types of social interaction. Indeed, in certain circumstances social invitations or flattering comments may even be desired by one person from another in a workplace setting. Therefore, the real question is not whether the conduct is offensive, but whether it is welcome from a given individual. This is in contrast to other types of harassment based on racial, ethnic or religious characteristics where there is usually little difficulty in determining whether conduct constitutes harassment because the conduct by its very nature is offensive.” See Husbands, R “Sexual harassment law in employment: An international perspective” (1992) 131 International Labour Review 535 at 535Google Scholar.

33 Id, sec 4(4). According to Du Toit, the courts will take into account the positions of both the perpetrator and the victim. They will have regard to the positions of the victim and the perpetrator in the workplace, as well as the complainant's subjective experience. See Toit, D DuLabour Relations Law: A Comprehensive Guide (2006, LexisNexis Publications) at 613Google Scholar.

34 Under the Compensation for Occupational Injuries and Disease Act 130 of 1993 (COIDA), employers are required to make payments to a compensation fund regulated by the compensation commissioner. Employees injured by accidents or disease at work can claim compensation. Claims are lodged with the director general of labour and are an administrative rather then litigious process. Once a claim has been made under COIDA, the employer cannot be sued under common law for negligence at the workplace. An argument often made by employers who are sued for workplace sexual harassment is that the employee must make a claim from the compensation fund and should not sue the employer. This was rejected by the Labour Court. In Ntsabo v Real Security CC (2003) 24 ILJ 2341 (LC), the Labour Court held that sexual harassment is not related to the course and scope of a person's employment, hence any disease or injury arising from sexual harassment cannot be under COIDA. Victims of workplace sexual harassment can therefore not claim from the fund and must sue the employer directly using one of the statutory or common law remedies available.

35 Fouche, MA Practical Guide to Labour Law (1999, LexisNexis Publishers) 11 at 11Google Scholar.

36 Walt, JC Van DerPrinciples of Delict (3rd ed, 2005, Juta Publishers) at 36Google Scholar.

37 2005 (6) SA 419 (CC).

38 Mukheibier, A “An overview of sexual harassment” (2006) OBITER 245 at 245Google Scholar.

39 K v Minister of Safety and Security, above at note 37 at 425, para G.

40 The court quoted (id at 436 at para B) from Estate Van der Byl v Swanepoel 1927 AD 141 at 1250: “An act done by a servant solely for his own interests and purposes, although occasioned by his employment, may fall outside the course or scope of his employment, and that in deciding whether an act by the servant does so fall, some reference is to be made to the servant's intention. The test is in this regard subjective. On the other hand, if there is nevertheless a sufficiently close link between the servant's acts for his own interests and purposes and the business of his master, the master may yet be liable. This is an objective test.”

41 The common law test for vicarious liability in deviation cases as developed in Minister of Police v Rabie (1) SA 117 A needs to be applied to new sets of facts in each case in the light of the spirit, purport and objects of the constitution: “The test is one which contains both a factual assessment (the question of the subjective intention of the perpetrators of the delict) as well as a consideration which raises a question of mixed fact and law, the objective question of whether the delict committed is ‘sufficiently connected to the business of the employer’ to render the employer liable”.

42 Sec 205 of the South African Constitution provides:

  1. “(1)

    “(1) The national police service must be structured to function in the national, provincial and, where appropriate, local spheres of government.

  2. (2)

    (2) National legislation must establish the powers and functions of the police service and must enable the police service to discharge its responsibilities effectively, taking into account the requirements of the provinces.

  3. (3)

    (3) The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.”

43 K v Minister of Safety and Security, above at note 37 at 443, paras F–J.

44 Id at 444, para B.

45 For an analysis of the limited application of vicarious liability claims in sexual harassment cases, see T Orleyn Sexual Harassment in the Workplace (2005, LexisNexis) at 75.

46 (2005) 26 ILJ 1007 (SCA).

47 Id at 1007, para E.

48 Ibid.

49 Id at 1024, para E.

50 Ibid.

51 Id at 1025, para J.

52 The victim can use the Lex Aquilia [Roman law principle of providing compensation to the owner of property damaged by someone's fault] to claim for patrimonial loss sustained by the sexual harassment. She can use the actio iniuriarum [action for compensation for an intentional injury to one's bodily and mental integrity] for the violation of her personal rights to dignity. She may also claim general damages for pain and suffering that has resulted from the sexual harassment, such as mental distress or shock. See J Neethling Law of Delict (2006, Juta Publishers) at 238.

53 Prescription Act 18 of 1969.

54 Act 55 of 1998. The state also passed the Prevention of Unfair Discrimination Act 4 of 2000, although this act does not apply expressly to the workplace.

55 The act prohibits discrimination and promotes affirmative action.

56 According to sec 8.1.1 of the Code and sec 60(1) of the EEA, conduct contravening the EEA must immediately be brought to the attention of the employer. Under sec 8.1.2 of the Code, in instances of sexual harassment, the word “immediately” shall mean as soon as is reasonably possible in the circumstances and without undue delay, taking into account the nature of sexual harassment, including the fact that that it is a sensitive issue, that the complainant may fear reprisals and the relative positions of the complainant and the alleged perpetrator in the workplace.

57 Sec 60 of the EEA. For analysis of this section, see R Le Roux “Section 60 of the Employment Equity Act 1998: Will a comparative approach shake this joker out of the pack?” (2006) 27 OBITER 411.

58 Id, sec 10(4).

59 Id, sec 10(6).

60 Id, sec 50(2).

61 For example, in Ntsabo v Real Security CC (2003) 24 ILJ 2341 (LC) the Labour Court ordered R50,000 compensation where an employee was sexually harassed over a period of seven months. In Christian v Colliers Properties the court found an employer guilty of sexual harassment in violation of secs 6(1) and 6(3) of the EEA and indicated that, in determining damages, the court must consider a number of factors including the duration, extent and frequency of the harassment, the extent to which the acts of harassment are blatant and intrusive, the arrogance and maliciousness attributable to the harassing party, and the consequences to the victim. The court indicated that an appropriate amount should be determined in light of the specific factors before the judge. In this case the court ordered the employer to make a payment of R10,000 since it failed to take reasonable steps to prevent the harassment and the employer himself had arrogantly harassed the victim. The court only ordered R10,000 since the employee had worked for the employer for just two days and there was no evidence of psychological harm.

62 Sec 188 of the LRA.

63 Id, sec 194.

64 Id, sec 194(3).

65 According to sec 193(2) of the LRA, the adjudicator will not order reinstatement or re-employment:

  1. (a)

    (a) Where the employee does not wish to be reinstated;

  2. (b)

    (b) Where the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;

  3. (c)

    (c) Where it is not reasonably practical for the employer to reinstate or re-employ the employee;

  4. (d)

    (d) Where the dismissal is only procedurally unfair.

However when a dismissal is automatically unfair, (d) would not come into operation since we looking at the reason for the dismissal.

66 Id, sec 191(4).

67 Id, sec 191(5)(b)(i).

68 According to secs 187(1)(a) and 187(b), a dismissal is automatically unfair if the reason for the dismissal is:

  1. “(a)

    “(a) that the employee participated in or supported, or indicated an intention to participate in or support, a strike or protest action that complies with the provisions of Chapter IV [of the LRA];

  2. (b)

    (b) that the employee refused or indicated an intention to refuse, to do any work normally done by an employee who at the time was taking part in a [protected] strike … unless that work is necessary to prevent an actual danger to life, personal safety or health.”

69 Above at note 34.

70 Id at 2342, para C.

71 Id at 2342, para G.

72 For a discussion of constructive dismissal and sexual harassment, see Christianson, MEssential Labour (2005, Labour Law Publications) at 210Google Scholar.

73 Ntsabo, above at note 34 at 2342, para D.

74 [2005] JOL 13888 (LC).

75 LRA, secs 186(2)(a) and 186(2)(b).

76 The matter must be referred to the CCMA or the respective bargaining council within 90 days of the unfair labour practice occurring. See sec 193(4) of the LRA.

77 Id, sec 194(4).

78 Above at note 21.

79 For analysis of this judgment, see A Van Niekerk Labor@Work, above at note 21 at 142.

80 For a discussion of the impact of sexual harassment in society, see: Palm-Foster, T “The voices of victims of sexual harassment” (2008) 12 Education as Change 109Google Scholar. According to Ian Currie: “The legacy of inequality inherited from the past means that Constitutional commitment to equality cannot simply be understood as a commitment to formal equality. That will result in a society that is formally equal but that is radically unequal in every other way”: Currie, IThe Bill of Rights Handbook (4th ed, 2001, Juta) at 199Google Scholar.

81 S v Makwanyane, above at note 19, para 98.