In light of #metoo and the Court’s zero-tolerance to sexual harassment, where does this leave employers?

In light of the recent #metoo movement, sexual harassment has never been more topical or of greater concern to all employers. The Employment Equity Act 1998 places unavoidable accountability on employers themselves should they overlook incidents of sexual harassment by one of their employees. What would seem like a private matter between two individuals, shifts to the employer to root out, failing which the employer is held personally liable by the victimised employee.

There are several cases which have emerged in recent years which have shown just how quickly an employer’s obligation to remove sexual harassment is invoked. Given the 2015 amendments to the Employment Equity Act, an employer cannot afford to ignore matters of sexual harassment. Such matters previously could only be pursued by victimised employees in the Labour Court, creating a substantial financial bar for most employees to seek justice. However, in the amendments, all matters relating to sexual harassment were permitted to be referred to arbitration at the CCMA – regardless of the number of employees victimised or the earning level of the victim.

The case of Campbell Scientific Africa (Pty) Ltd v Simmers and Others [2015] is of particular interest to employers, as the judgment greatly expands the capability of mere sexual advances to move into the realm of sexual harassment. As a result, sexual harassment cases are not only quicker, easier, and cheaper to have heard, but they are simpler for the employee to discharge the burden of proof.

Simmers involved an employee in his late forties, Mr Simmers, and a young woman whom he worked with, but who was employed by another company, Ms Markides. Mr Simmers and Ms Markides were on a business trip together due to a joint project being administered by their companies. After working hours, Mr Simmers “tried his luck” – as put by Judge Steenkamp in the Labour Court – with Ms Markides by asking her sexually suggestive questions and repeatedly requesting that she come to his hotel room. However, after several requests, it appeared from the facts that Ms Markides had made her refusal clear and Mr Simmers, reluctantly, ceased his conduct. The Company found Mr Simmers guilty of sexual harassment and dismissed him. He then referred this to the CCMA claiming that he had been unfairly dismissed. The essential question became: was this conduct sexual harassment, and was Mr Simmer’s dismissal fair?

The matter went back and forth in the different forums, with the CCMA finding the dismissal was fair and the Labour Court finding the dismissal was unfair. However, this matter was then appealed to the Labour Appeal Court. The court stated that the Labour Court was wrong in its finding that there was not a difference in power between the two employees. The judge stated that the factor of a difference in power does not only refer to the case of a superior and a subordinate of the same employer; instead there can simply be a difference in power in the social reality of two people. The court expressed that a sexually hostile environment is usually more about the perceived societal power of men over women. In addition, the court remarked that there is also a perceived power of older people over younger people. For that reason, there was a difference in powers present in this case. The final word on the matter being that the dismissal was fair.

In the more recent case of Rustenburg Platinum Mines Limited v UASA obo Pietersen, the Labour Court was called upon to judge whether sexually suggestive comments which had been going on for seven years without any expressed objection by the recipient, constitutes sexual harassment. It should be noted that the recipient of the advances stated that she did not want the advances, but neither expressly objected nor agreed to go along with advances. She remained silent to the perpetrator. So the question at hand is, would seven years of your advances being tolerated not lead you to believe that the recipient of them doesn’t mind them? The CCMA certainly believed so. The CCMA stated due to the recipient not unambiguously objecting to the advances, coupled with her “docile conduct” in the face of them amounted to encouragement. In light of the more informed perspectives we have on sexual harassment, it is not difficult to understand why the Labour Court criticized the CCMA as being patriarchal and misogynistic in the extreme. The Labour Court stated clearly that never has South African labour law required the perpetrator of sexual harassment to be aware that their behaviour is unwanted or offensive. The conclusion of this case being, that it is simply not good enough for a perpetrator to raise the defence that they didn’t know their conduct was sexual harassment or unwanted.

These cases can appear daunting to many employees and employers causing them to question where is the line between sexual advances and sexual harassment? After seven years of not receiving an objection to your advances or after a single incident of asking a woman to your hotel room, perhaps finding where the line is, is not as black and white as we would like. However, what is clear, is that employers cannot be seen to be insensitive to such issues and must take complaints of sexual harassment very seriously as the courts have certainly begun to take strict interpretations of the law and exercise zero tolerance.

For assistance harassment policies or managing harassment claims, kindly contact Workplace Strategies at info@workplacestrategies.co.za.