14/06/2017
The onus on employers
By: P.A.K le Roux
Two recent decisions of the
Labour Appeal Court
(LAC) dealing, once again,
with the issue of sexual harassment
were recently handed down. The one
makes interesting points concerning
the right of an employer to take disciplinary
steps against a perpetrator
of sexual harassment and the issue of
inconsistent treatment. The other
deals with the obligation of an employer
to prevent sexual harassment
in the workplace.
Liberty Group Limited v
M.M (21/9/2016 7/3/2017)
The employee in this matter, referred
to in the decision as ‘M’,
resigned from her employment after
10 years’ service. In her letter of resignation
she stated that the reason for
her resignation was that her manager
had been sexually harassing her.
This allegation could have formed
the basis for a claim that M had been
constructively dismissed and that the
dismissal was automatically unfair as
envisaged in section 187 of the Labour
Relations Act, 66 of 1995
(LRA). It appears that M did not take
this option but opted to base her
claim on the provisions of the Employment
Equity Act, 55 of 1998
(EEA). Section 6 of the EEA provides
that sexual harassment is a
form of unfair discrimination. She
referred a dispute to the Labour
Court in which she claimed compensation
from the employer on the
grounds that she had been unfairly
discriminated against. The employer,
she argued, was liable by virtue of
the provisions of section 60 of the
EEA. This states, inter alia, that –
- If it is alleged that an employee, while at
work, contravenes a provision of the
EEA (e.g committed an act of sexual harassment)
the alleged conduct must immediately
be brought to the attention of the
employer.
- The employer must then consult all relevant
parties and must take the necessary
steps to eliminate the alleged conduct and
comply with the provisions of the EEA.
- If the employer fails to take the necessary
steps referred to above, and it is proved
that the employee did contravene a provision
of the EEA (e.g. committed an act of
sexual harassment), the employer is
deemed to have also contravened the relevant
provision.
- However, the employer will not be liable
for the conduct of the employee if the
employer can prove that it did all that
was reasonably practicable to ensure that
the employee would not contravene the
EEA.
The Labour Court proceedings
From the LAC decision is appears that the
following evidence was led during the trial
in the Labour Court –
- M testified that her manager, a Mr Mosesi,
had harassed her on four occasions
during the first half of 2009. This took
the form of inappropriate comments and
physical contact. This occurred at a time
when she was encountering financial difficulties.
She further testified that she had
discussed this with Mosesi. However, she
feared that she may lose her job if she
reported the sexual harassment. Mosesi
was not only her senior, but was also responsible
for appraising her performance.
- On 6 July 2009 she addressed a request
for a salary increase to her divisional
manager but did not report the sexual
harassment to him. The reason for this,
she stated, was that he was too ‘high up’.
- On 28 July 2009 she sent an email to a
Ms Soller, the employer’s relevant human
resources consultant. The email did
not disclose the sexual harassment and
only dealt with her financial situation. In
her evidence she stated, however, that
she hoped that the letter would get the attention
of the employer’s human resources
department so that she could report
the sexual harassment.
- On 31 July 2009 she requested a meeting
with Soller and a meeting was scheduled
for 18 August 2009. On 17 August Soller
sent M an email asking whether she still
wanted to meet because she had received
‘feedback’ that M’s concerns had been
addressed. M’s response is not recorded
in the judgment. However, M’s further
evidence was that, because she did not
have a good relationship with her team
leader, she contacted her former team
leader – who then suggested that she contact
a Mr Haines.
- M testified that she then contacted
Haines telephonically during which she
first discussed her salary and then informed
him that her immediate manager
was sexually harassing her. He told her to
consult the employer’s sexual harassment
policy in order to determine whether Mosesi’s
conduct constituted sexual harassment.
She stated that Haine’s attitude was
‘dismissive’.
- Haines’ evidence was that a large part of
the call was about her salary but that she
did, in the latter part of the telephone call,
say something about her harassment but
that she did not identify the person harassing
her.
- Haines testified that he contacted Soller
the following day. Soller in turn testified
that she tried to contact M but was unsuccessful.
She then emailed a request for a
meeting but this meeting did not take
place because of ‘scheduling difficulties’.
- M testified that she then obtained the necessary
forms to lodge a sexual harassment
complaint but did not lodge the complaint.
She was then contacted by Mosesi who
told her that he was aware that she had
been talking to human resources. From
this she inferred that Haines had informed
Mosesi about her discussion with him.
- M also testified that she called the employer’s
wellness centre to ask for information
as to a submission of a sexual harassment
complaint and was told that she
should refer the matter to the CCMA.
However, the employer denied that such a
call had been made on the basis that no
record of such a call existed at the call
centre. She resigned on 28 September
2009 but was persuade to withdraw her
resignation by her team leader Ms Nyathi.
- According to Nyathi’s evidence she offered
to speak to Mosesi but that M rejected
this. During the following two week
period no steps were taken to investigate
the complaint.
- M then submitted her resignation again on
13 October 2009. She refused to assist
with the employer’s investigation into the
matter because she was of the view that
the employer had failed to co-operate with
her and was doing ‘too little, too late’.
Mosesi had been suspended but this was
subsequently lifted. The fact that Mosesi
was only suspended after M’s second resignation
meant that no steps were taken to
ensure that the sexual harassment did not
continue.
Predictably, M was subjected to vigorous
cross examination during the trial. Given the
LAC’s comments with regard to the way in
which this was conducted, it is relevant to set
out the following excerpts from the LAC’s
decision dealing with this cross-examination.
‘[17] During the course of vigorous and
lengthy cross-examination, it was put to
the respondent by the appellant’s counsel
that her claim was “meritless”, that she
had known as much all along, that she
was only “in it for the money [and had]
always been in it for the money” and that
she had “tried to extort money out of Liberty”
with the hope that she “would get
some sort of settlement and that the whole
matter would go away”. The respondent
denied this, stating that “…from the beginning
I wanted justice. I still want justice
today”. She persisted that she had
been sexually harassed by Mr Mosesi …
[18] The appellant took issue with the respondent’s
recall, after more than two
years, of precise dates and details related
to the harassment. This led the appellant’s
counsel put it to the respondent that she
was “incapable of telling the same story”
and that she had contradicted herself repeatedly,
while being chided to “(c)ome
on, tell us the truth…” She was told she
was “all over the place as to what actually
happened” and that “(e)verything that
you have described today…in relation to
what occurred between you and Mr Mo-
sesi was effectively consensual. It was tolerable.
It was not unacceptable. Not so?’
The Labour Court came to the conclusion that
M had established that she had been sexually
harassed. The employer had put up no direct
evidence to rebut M’s evidence and she was
found to be a reliable and credible witness.
Although M had sought a salary increase, this
did not support a conclusion that the allegation
of sexual harassment had been fabricated
because of M’s financial situation. It further
found that Haines, ‘because of his own prejudices’
simply opted to send M away to study
the sexual harassment policy. Soller’s efforts
to get hold of M were insufficient. The Court
also accepted that M did make a call to the
call centre. It was also drew the inference that
either Soller or Haines had contacted Mosesi
and informed him of M’s complaint. It came
to the conclusion that the employer was liable
for the actions of Mosesi as envisaged in section
60 of the EEA and ordered the payment
of R250 000.00 to M as compensation.
The LAC decision
Following the decision in Potgieter v National
Commissioner of the SA Police Service & another
(2009) 30 ILJ 1322 (LC) the LAC summarised
the requirements for employer liability
in terms of section 60 as follows:
- That the sexual harassment conduct complained
of was committed by another employee.
- That the conduct complained of constituted
unfair discrimination.
- That the alleged sexual harassment took
place at the workplace.
- That the alleged sexual harassment was
immediately brought to the attention of the
employer.
- That the employer was aware of the incident
of sexual harassment.
- That the employer failed to consult all relevant
parties, or take the necessary steps
to eliminate the conduct or otherwise comply
with the provisions of the EEA.
- That the employer failed to take all reasonable
and practical measures to ensure
that employee did not act in contravention
of the EEA.
The LAC then assessed the employer’s conduct
in the light of the above requirements
and came to the conclusion that these requirements
had been met. In doing so it refused to
disturb the Labour Court’s factual findings.
The findings that Mosesi had sexually harassed
M and that there had been unfair discrimination
should stand. The LAC also accepted
that M’s report to Haines that she had
been sexually harassed also satisfied the requirement
that the sexual harassment should
be brought to the attention of the employer
‘immediately’ – this despite the fact that the
report had been made some weeks after the
sexual harassment. This important finding is
motivated as follows –
‘[51] … I am satisfied that the requirement
that conduct be reported “immediately”
must be given a sensible meaning. This is
done through considering the provision
within its context and in a manner which
ensures an interpretation that does not
lead to a glaring absurdity, even where the
interpretation given may involve a departure
from the plain meaning of the words,
used.
[52] … The stated purpose of the EEA is to
provide for employment equity through in-
ter alia eliminating unfair discrimination
in employment, ensuring the implementation
of employment equity to redress the
effects of discrimination and achieving a
broadly representative workforce. The requirement
that conduct in contravention
of the Act be brought to the attention of
the employer “immediately” seeks to
place the employer in a position to act in
the manner required of it in terms of s 60.
[53] A determination as to whether a report
has been made in accordance with s
60(1) requires an assessment of the facts
unique to each matter. I am satisfied that
the respondent’s report of the conduct,
while not made immediately, was nevertheless
made within sufficient time and
that an unduly technical approach to the
timing of the report is not warranted on
the facts of this case. A glaring absurdity
would arise, one which does not accord
with the purpose of the EEA, were the report
to be found to have failed to comply
with s 60(1) simply by virtue of the limited
delay which arose between the conduct
complained of and the report to the employer.’
The employer’s conduct after the receipt of
the report by Mr Haines was also criticised.
M’s evidence that Haines had been dismissive
was accepted and was, in the opinion
of the LAC, borne out by the fact that Haines
had simply referred M to the sexual harassment
policy and left it to her to take further
steps. It found that it was ‘remarkable’ that
neither Haines nor Soller had taken steps to
meet with M to investigate the complaint.
Soller did no more than attempt to make contact
with M via email and telephone to request
a meeting with her. No attempt was
made to visit her at her workplace in order to
elicit further information. The response was,
at best, superficial. The employer had not
consulted with the relevant parties and had
failed to take the necessary steps to eliminate
the alleged sexual harassment. The fact that
either Haines or Soller had informed Mosesi
that M had complained about his conduct
meant that the employer had failed to take
positive steps to protect M. This was not only
in breach of the EEA but also in breach of
the employer’s own policy on sexual harassment.
The failure to investigate the matter until
after M’s resignation was also ‘glaring’.
Finally, the LAC commented that the employer’s
approach to section 60 and the hostile
manner of its defence to M’s claim constituted
a failure to have regard to the purposes
and objects of the EEA and constituted
precisely the response that the EEA tried to
prevent.
Comment
It is interesting that M, in this matter, decided
to rely on the provisions of the EEA and in
particular section 60 thereof, in order to claim
compensation. She had another option, namely
to institute a common law claim for damages.
In the latter type of claim M would
have had to establish the requirements for delictual
liability and that the employer was vicariously
liable for the actions of Haines and
Soller. See in this regard the discussion CLL
Vol 26 no 1.
The decision also discusses how the interpretation
of section 60 should be approached.
But from the perspective of lawyers defend-
ing their clients perhaps the most important
aspect of the case was the LAC’s criticism of
the conduct of the employer’s legal representatives
when cross examining M. The LAC
stated that the cross examination simply added
to the harassment that M had suffered.
It also had the following to say –
‘[44] From the record what is apparent
is a vicious and sustained attack launched
by the appellant, through its counsel, on
the respondent’s person, her motives and
credibility and the reliability of her evidence
over some three days of unacceptably
harsh, cruel and vicious crossexamination.
The result was that she became
victim to unwarranted and unjustified
secondary harassment at the hands of
the appellant, an issue that was taken up
by this Court with counsel at the outset of
the hearing.’
In sexual harassment cases it is often, unfortunately,
the position that there are only two
witnesses to the incidents of harassment - the
alleged victim and the alleged perpetrator.
This often means that the evidence of the two
witnesses will be the subject of searching
cross examination. This decision indicates
that there are limits that must not be crossed
in this regard.
MEC for Education (North West
Provincial Government) v Makubalo
(JA 37/2012 3/2/2017)
The employee in this matter, a Mr Makubalo,
was employed by the employer as
a school principal. He was found guilty of two
disciplinary offences, namely sexually assaulting
a fellow employee, a Ms Monegi,
and the mismanagement of his school’s finances.
He challenged the fairness of his dismissal.
An arbitrator appointed by the Education
Labour Relations Council (ELRC) found
that his dismissal was unfair.
This finding
was set aside by the Labour Court and the
matter was referred back to the ELRC for a
new hearing. The second time around the arbitrator
found that Makubalo had sexually assaulted
Monegi on two occasions. This constituted
an abuse of his power as principal over a
subordinate. He also found that Makubalo
had given unauthorised loans to staff members
and that he had committed serious irregularities
in the manner that he handled school
funds. The dismissal was found to be fair.
Makubalo then sought to review this decision.
The Labour Court accepted that the arbitrator’s
award had been well reasoned and that it
was clear that Makubalo had been guilty of
sexual assaulting Monegi. However, the Court
also found that the arbitrator had erred by not
taking into account an event that had occurred
prior to the arbitration. It appears that, at some
point prior to the arbitration, a meeting had
taken place between Makubalo, Monegi and a
third party. It appears that the third party
played a mediatory role between the parties
and the pre-arbitration minute recorded that
the matter had been amicably resolved between
them at the meeting. This then led to
the Court deciding that the arbitrator should
have found that the matter had been settled.
The Court also found that the arbitrator had
failed to apply his mind to the issue of inconsistent
treatment. The pre-arbitration minute
had recorded that no disciplinary steps had
been taken against a teacher by the name of
Khutswane a few years earlier. The Labour
Court also accepted that the arbitrator had
been correct in finding that Makubalo had
been guilty of financial mismanagement but
found that this was not sufficiently serious
to justify dismissal. The Labour Court found
that the dismissal had been unfair and that
Makubalo should be reinstated with full
back pay.
The employer then appealed to the LAC.
The LAC took a different approach on all
three points. It made the point that Makubalo’s
evidence at the arbitration did not accord
with the contents of the pre-arbitration
minute. On his version he had denied at the
meeting with the third party that he was
guilty of sexual misconduct and the prearbitration
minute did not evince an admission
that he had done so. There had been no
settlement of the dispute and the arbitrator
had not erred in finding that the prearbitration
minute did not preclude him
from considering whether there had been
sexual misconduct.
Of more importance, however, was the
LAC’s view that an amicable resolution of
a dispute between a perpetrator and a victim
does not prevent an employer from taking
disciplinary action.
‘[20] It stands to be noted that even
had there been a resolution of the issue
between the respondent and Ms Monegi,
workplace rules regulate the standard of
conduct required within the context of
the employment relationship. An employer
is therefore entitled to take disciplinary
action against an employee whose
conduct falls short of such rules or
standards. An amicable resolution of a
dispute between two employees does not
in itself resolve the workplace misconduct
from the perspective of an employer,
nor does it prevent the employer from
taking disciplinary action against the
employee for such misconduct.’
The LAC also took a far more relaxed view
regarding the allegation of inconsistency.
Makubalo was aware of the seriousness of
his misconduct. This was borne out by the
fact that he had been involved in the referral
of the complaint against Mr Khutswane. His
conduct in sexually assaulting a colleague
more than once constituted serious misconduct
- this was even more so because of his
position of authority as a school principle.
The Court also referred to section 17(2) of
the Employment of Educators Act, 77 of
1998 which states that if it is alleged that an
educator committed an act of serious misconduct
disciplinary proceedings must be instituted.
The employer cannot be held liable
on the basis of inconsistent treatment where
it arose from an earlier decision that was
manifestly wrong.
‘[25] Although the EEA was not in
force at the time of Mr Khutswane’s alleged
misconduct, the appellant’s failure
to take action against him does not permit
the respondent to profit from a reliance
on the principle of parity and disciplinary
consistency. This is more so
where on the face of it the failure to discipline
Mr Khutswane appears to have
been manifestly wrong. Were the respondent
to be entitled to rely on the fail-
ure to discipline Mr Khutswane to avoid the
consequences of his own misconduct, this
would have the result that no subsequent
dismissal for sexual assault within the workplace
would be fair given the past failure to
discipline Mr Khutswane. Such a finding
would be manifestly unjust, having regard
to the nature of the misconduct and the
workplace within which it was committed,
and would be contrary to the provisions of
the EEA.
[26] It follows that there existed a fair
and objective basis for taking disciplinary
action against the respondent and his reliance
on the inconsistent application of discipline
as a basis on which to contend that
his dismissal was unfair is unfounded.’
(Note: the reference to ‘the EEA’ is a
reference to the Employment of Educators
Act.)
Finally, the LAC found that that the arbitrator’s
finding that dismissal was an appropriate sanction
was a reasonable one which was not reviewable.
Comment
The finding that an employer is not precluded
from taking disciplinary action against one or
more employees involved in an incident that
could be the subject of disciplinary action
merely because the employees have amicably
resolved the issue that gave rise to the incident
is undoubtedly correct. It is the right of the employer
to determine the rules that will determine
conduct within the workplace, subject to
the proviso that the rule is a valid and reasonable
rule. Although employees are entitled to
challenge the fairness of any disciplinary action
taken and argue that a specific rule is unreasonable,
they are not entitled to decide for themselves
whether disciplinary action can or cannot
be taken. This decision lies with the employer.
To accept otherwise would mean that,
as in this case, an employee who is guilty of serious
misconduct may escape disciplinary sanction
and remain employed. Other employees
would face the possibility that they may be harassed
in the same manner by the employee who
escaped dismissal.
This question often arises in a different context.
An employee who has been charged with a disciplinary
offence may call as a witness his supervisor
who will then give evidence that he
(the supervisor) does not think that dismissal is
justified for the offence and that the trust relationship
between him and the employee has not
been destroyed. It is submitted that this evidence
is irrelevant. It is not only the right of the
employer to determine what disciplinary rules
will apply but also to decide what sanction
should be imposed for the contravention of
these rules. It is senior management, or its representatives,
that sets the values that an employer
espouses as reflected in its disciplinary
code. It is their views that must be taken into
account, not that of a foreman or supervisor.
Of course, an arbitrator or the Labour Court
has the power to decide whether dismissal is
an appropriate sanction. But in doing so the arbitrator
or Judge must give due weight to the
relevant disciplinary code and the reasons advanced
by management for the sanction imposed.
The LAC’s approach with regard to inconsistency
seems to reflect a growing appreciation
that a strict application of the ‘parity principle’
does not serve the cause of workplace
justice. See the survey in CLLVol 24 no 4. As
pointed out in the following excerpt from the
decision in Absa Bank Ltd v Naidu & others
(2015) 36 ILJ 602 (LAC), the element of consistency
is simply a factor to be taken into account
when deciding on the fairness of a dismissal.
‘[42] Indeed, in accordance with the parity
principle, the element of consistency on the
part of an employer in its treatment of employees
is an important factor to take into
account in the determination process of the
fairness of a dismissal. However, as I say,
it is only a factor to take into account in
that process. It is by no means decisive of
the outcome on the determination of reasonableness
and fairness of the decision to
dismiss. In my view, the fact that another
employee committed a similar transgression
in the past and was not dismissed H
cannot, and should not, be taken to grant a
licence to every other employee, willy-nilly,
to commit serious misdemeanours, especially
of a dishonest nature, towards their
employer in the belief that they will not be
dismissed. It is well accepted in civilised
society that two wrongs can never make a
right. The parity principle was never intended
to promote or encourage anarchy in
the workplace. As stated earlier, I reiterate,
there are varying degrees of dishonesty
and, therefore, each I case will be treated
on the basis of its own facts and circumstances.’
The nature of the misconduct and the position
held by the employee will be important factors
to be taken into account in in this regard.