By Pierre van der Merwe, Partner and Charlotte Clarke, Candidate Attorney, 8 November 2017
The issue of sexual harassment is in the spotlight recently with everyone from Hollywood director Harvey Weinstein to our own South African politicians coming under fire for their conduct. The #MeToo movement has further encouraged victims of sexual harassment and assault to speak up about their experience, highlighting the prevalence of conduct that was previously thought only to exist in the seedy depths of our society.
So the question is, in a South African context, what should an employee do if confronted by a local “Harvey Weinstein” and what are the implications for The Weinstein Company.
The case of Liberty Group Limited v M (JA105/2015)  ZALAC 19; (2017) 38 ILJ 1318 (LAC) (7 March 2017) dealt with a “Harvey” and the consequence of an employer’s failure to prevent such conduct.
An employee of Liberty Group Limited (“Liberty”) referred a dispute of unfair discrimination to the Labour Court in terms of Section 60 of the Employment Equity Act (“the EEA”). During her testimony, Ms M, gave a harrowing account of her sexual harassment at the hands of her manager.
Ms M testified that she had been sexually harassed on four occasions by her manager, Mr Mosesi. The sexual harassment consisted of, amongst others, inappropriate sexual comments, touching, groping and massaging.
Ms M was initially hesitant to report the sexual harassment as Mr Mosesi was her direct manager and was responsible for her performance appraisals. She testified that she really needed the job and Mr Mosesi repeatedly promised to train her and pay her a better salary.
Ms M decided to report the sexual harassment to Liberty’s Human Resources consultant who was dismissive of the complaint and informed the Respondent that she should consult Liberty’s sexual harassment policy to determine whether the conduct, in fact, amounted to sexual harassment. Liberty’s Human Resources department further informed Mr Mosesi about the complaint against him.
When Ms M became aware that Mr Mosesi knew that she had made a complaint against him, she tendered her resignation on the basis of the sexual harassment. Ms M’s team leader contacted her and asked her not to resign so that the issue could be remedied. For the next two weeks, no steps were taken by Liberty to investigate the sexual harassment complaint. Ms M again tendered her resignation and thereafter referred a dispute of unfair discrimination to the Labour Court where she was awarded R250,000.00 compensation. Liberty brought the matter on appeal to the Labour Appeal Court, who conducted an in depth analysis of the evidence of the sexual harassment as well as Liberty’s obligations in terms of the Labour Relations Act (“the LRA”) and the EEA.
Sexual Harassment and the LRA
The LRA Code of Good Practice on the Handling of Sexual Harassment Cases (“the Code”) defines sexual harassment broadly “as unwanted conduct of a sexual nature.”
The Code further states that sexual harassment includes unwelcome physical, verbal or non-verbal conduct, which includes, but is not limited to; physical contact, ranging from touching to sexual assault and rape, innuendoes, sex-related jokes, inappropriate enquiries about a person’s sex life, comments about a person’s body, gestures, and the display of sexually explicit pictures and objects.
The Code prescribes that employers must create and maintain a working environment in which the dignity of employees is respected and where victims of sexual harassment will not feel that their grievances are ignored or trivialised. Employers should develop clear procedures to deal with sexual harassment. These procedures should ensure the resolution of problems in a sensitive, efficient and effective way.
Sexual Harassment and the EEA
By treating sexual harassment as a form of unfair discrimination, the EEA recognises that such conduct poses a barrier to the achievement of substantive equality in the workplace.
Section 60 of the EEA provides that, where any employee is engaging in any conduct in contravention of the EEA, the conduct must immediately be brought to the attention of the employer. The employer must take the necessary steps to eliminate the alleged conduct and comply with the provisions of the EEA. If an employer does not take the necessary steps to eliminate the alleged conduct, the employer is deemed to be perpetrating the conduct themselves and will, as such, be liable to the victim.
The Decision of the Labour Appeal Court
The Labour Appeal Court found that Ms M had been sexually harassed by Mr Mosesi, as defined in the Code, and had reported the sexual harassment three times to Liberty, as required by the Code and the EEA. Liberty did nothing to remedy the situation and had therefore failed to take reasonable steps in terms of S60 of the EEA to protect Ms M. In terms of S60 of the EEA, Liberty were found to be guilty of the same misconduct perpetrated by Mr Mosesi. Liberty’s appeal was accordingly dismissed with costs.
Employers have a duty to protect their employees from Harvey Weinstein’s in the workplace. Employers should have clear procedures in place to deal with the prevention and reporting of sexual harassment. If an employee alleges that they have been sexually harassed in any way, the employer is required to take genuine and significant action by consulting all relevant parties and investigating the matter in a sensitive and confidential manner to ensure that the conduct is not repeated.
As can be seen from the Liberty case, had The Weinstein Company operated in South Africa, there could well be serious implications not only for Harvey, but also for his company.