HARASSMENT: THE CODE OF GOOD PRACTICE AND VICARIOUS LIABILITY
AMATHOLE DISTRICT MUNICIPALITY V COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION AND OTHERS (PA9/2018) [2022] ZALAC 119 (10 NOVEMBER 2022)
The employee was employed by the employer stationed at Nxuba Municipality. In February 2015, Mr. F, who was also an employee of the employer, was transferred to Nxuba Municipality.
Because of the limited office space, Mr. F had to share an office with the employee for approximately three months before moving to his own office.
The employee claimed that during this period and even after he had moved, Mr. F had sexually harassed her by inappropriately touching her and suggesting that they have an intimate relationship.
After reporting the matter to a shop steward and on the insistence of her boyfriend, the employee referred a grievance about four months after the sexual harassment ended.
When the grievance was heard the presiding officer could find no basis for the complaint of sexual harassment.
The presiding officer recommended that the employee should be transferred to another division and be counselled for stress and that she be “capacitated” to work more efficiently.
The employee referred a dispute to the CCMA. The Commissioner of the CCMA found that the employee had been harassed and that the employer had failed to take steps to protect her.
The Commissioner awarded the employee R150 000 in damages. On appeal, the Labour Court (LC) found that there was no reason to doubt the employee’s version and credibility and dismissed the appeal with costs.
The employee’s counsel conceded in argument that the emails submitted by the employer showed signs of consensual conduct on the part of the employee.
The LAC accepted that sexual harassment cannot be tolerated and creates a barrier to the achievement of substantive equality in the workplace.
The employee’s evidence that she was sexually harassed by Mr. F was both internally and externally contradictory. The onus rested on the employee to prove that sexual harassment had occurred.
Her description of her experiences was contradicted by flirtatious messages, containing expressions like “my love”, “honey” and “cutie” sent to Mr. F by the employee.
The Commissioner had erred by rejecting these messages on the basis that their authenticity had not been proved, even though the employee had admitted that she wrote them. The employee had also waited for nearly three months before raising a complaint.
There was, accordingly, insufficient evidence before the Commissioner to prove that Mr. F had sexually harassed the employee and to warrant a finding that his employer was liable under the EEA.
The LAC held further that, in any event, the employer had taken steps to keep the employee away from her alleged harasser and had offered her counselling.
The LAC found that the employer should not have been held liable and there was no basis for the finding that the employer should compensate the employee by paying her R150 000.
The award was set aside and the employer’s appeal was upheld.
J Goldberg