Would-be workplace sex pests should remember that our courts are unwavering in their support for victims of sexual harassment. When it happens in the workplace, victims can seek redress not only from the perpetrators themselves, but also from their employer in appropriate cases.
Victims must however report any incident to their employer, without delay and using the correct procedures.
Failure to do so can be fatal to the victim’s claim, as we shall see in the context of a recent Labour Court case where a female employee, who had been subjected to harassment by two of her senior colleagues, delayed (for two and three years respectively) before reporting them to her employer.
“…sexual harassment is a heinous and horrendous conduct since it undermines the dignity of women and the values enshrined in our Constitution.” (Extract from judgment below)
Employers have a strong duty to provide a safe workplace for their employees, and to protect them from harm – including sexual harassment. An employer who fails in this faces claims for damages and compensation, but as a recent Labour Court judgment shows, the victim must first follow procedure correctly, and without delay.
Delayed reporting kills a claim
A female employee claimed “a just and equitable compensation” from her employer after she was sexually harassed by two male superiors.
Her claim failed, the Court finding that her delay in reporting the incidents to her employer (two years in one case and three in the other) were……
The correct procedure, and the required timing
The employee’s claim was based on an allegation that her employer had contravened section 60 of the Employment Equity Act (EEA), which deems an employer guilty of a contravention and liable for the offending employee’s conduct unless it takes “the necessary steps to eliminate the alleged conduct and comply with the provisions of this Act” and “is able to prove that it did all that was reasonably practicable to ensure that the employee would not act in contravention of this Act.”
- The Court set out the required steps by the victim as –
- Allege a contravention at the workplace
- Report the contravention immediately
- Prove the alleged contravention
Allege and prove failure to take the necessary steps.
A victim who can prove all the above is entitled to a deeming order of liability, and to avoid liability it is then up to the employer to prove that it took the necessary and preventative steps.
The victim in this case had no trouble in proving that the incidents of sexual harassment had taken place, but she failed to convince the Court that she had brought the incidents to her employer’s attention “immediately” as required by the section. The Court referred to a previous decision of the Labour Appeal Court suggesting that the word “immediate” be given a “sensible meaning”. In that case a two-month delay in reporting was found to be acceptable as a “limited delay”. However the Court’s comment that “In my view, a delay is an antithesis of the word as literally defined” is a clear warning to victims – report incidents to your employer without delay!
In any event, held the Court, the victim’s delays in reporting (two and three years respectively) meant she had failed to report “immediately” as required.
The Court was equally unimpressed with her suggestion that she had indeed reported the incidents to her employer in time by discussing them with “colleagues and managers”. That, held the Court, was not enough: “As I see it, to my mind, the reporting must be to an employer through the mechanism in its adopted policy.” She had not done that, so there’s another clear lesson for victims there – make a formal report to the correct person/s in terms of your employer’s policies.
Finally, said the Court, the employer had as soon as it received the reports, promptly investigated them and complied with its obligations in terms of the EEA.
Claiming from the offenders themselves
On a related note the Court mentioned that the victim would have a claim direct against the two employees who harassed her. Once again however, time is of the essence for victims – quite apart from the risk of the claim prescribing, the earlier formal reports are made the greater the credibility likely to be given to them.