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Sexual Harassment and Employer Liability: A Critical Analysis of the South African Legal Position

Published online by Cambridge University Press:  20 September 2010

Mohamed Alli Chicktay
Rights & Permissions [Opens in a new window]

Abstract

On 27 April 1994 South Africans adopted a new constitution, with founding values of dignity, equality and freedom. Despite the new constitution, the majority of women remain victims within the workplace. They still find themselves a minority within senior management and are often subjected to sexual harassment. Women are either denied work opportunities for refusing to give in to a perpetrator's sexual advances or they are forced to work in an unpleasant environment that severely infringes on their dignity. There are five legal options available to victims of sexual harassment within the South African workplace. These are claims against the employer for: vicarious liability; automatically unfair dismissal; unfair labour practices; failing to create a safe working environment; and violating the Employment Equity Act. This article examines the strengths and weaknesses of these legal actions. It also makes further suggestions aimed at curbing workplace sexual harassment within South Africa.

Information

Type
Research Article
Information
Journal of African Law , Volume 54 , Issue 2 , October 2010, pp. 283 - 297
Copyright
Copyright © School of Oriental and African Studies 2010

INTRODUCTION

South Africa has one of the world's highest reported rates of violent crimes against women. Evidence has shown that 68 per cent of women have been subjected to sexual harassment at least once at their place of work.Footnote 1 Within the workplace, harassment may take one of two forms. First, quid pro quo harassment where the perpetrator requires sexual favours in exchange for work benefits such as jobs, promotion and salaries.Footnote 2 Secondly, unwanted behaviour with sexual connotations attached to it: the victim could be subjected to touching or to sexist comments either verbally, graphically or through gestures.Footnote 3 While the victim is not denied any job benefits, the second form of workplace sexual harassment creates a hostile working environment. It is a continuum of abusive behaviour, from very mild to very severe forms of unwanted sexual conduct and even violence.Footnote 4

It is essential that sexual harassment be restricted in South Africa for two primary reasons. First, sexual harassment has a major impact on the economy. According to Lisa Vetten, manager of the Gender Programme at the Centre for the Study of Violence and Reconciliation, sexual harassment affects the economy in various ways. Productivity is affected by time lost due to sexual harassment; the victim either spends time avoiding the harasser or staying absent from work due to sick leave, or even resigns. Vacant posts increase the workload of other employees whose work is neglected; this may result in a drop in standards or deadlines being missed.Footnote 5 Sexual harassment often results in stress related illnesses such as headaches and loss of concentration, which may reduce job performance; this may result in the demotion or dismissal of employees who would otherwise be contributing effectively to the economy.Footnote 6 Other costs that may be imposed on companies are punitive and compensatory damage awards allocated to victims of sexual harassment as well as a tarnished public image.Footnote 7 Legal fees and loss of management time devoted to investigating and remedying sexual harassment claims also impose further economic burdens on employers.Footnote 8 Investing time and resources in workplace sexual harassment training will benefit the company.

Secondly, sexual harassment should also be addressed because it severely infringes upon the victims' constitutionally recognized fundamental rights. In 1994 South Africa adopted a democratic constitution, which for the first time provided fundamental rights to all South Africans, irrespective of race.Footnote 9 Section 1 of the South African Constitution states that the two founding values of the constitution are equality and dignity.Footnote 10 These values are further emphasized in sections 39(1) and 36. Section 39(1) indicates that the Bill of Rights must be interpreted in a manner that promotes the primary values of equality, dignity and freedom and, according to section 36, rights in the Bill of Rights can only be limited in accordance with the values of dignity, equality and freedom.

Sexual harassment is a severe challenge to these founding values. First, section 9 of the South African Constitution provides all South Africans with the right to equality and the right not to be discriminated against.Footnote 11 Although both men and women can be subject to sexual harassment, women are often the victims.Footnote 12 According to Adrianne Speas, “statistics show that women in traditionally male-populated sectors are more likely to experience sexual harassment than their peers in traditionally female-populated sectors”.Footnote 13 In South Africa, the workplace is still mainly dominated by men. A 2005 statistic revealed that 69.4 per cent of clerks were women, while 70.8 per cent of managers were men.Footnote 14 This power imbalance in South Africa ensures that women are more vulnerable to sexual harassment. Also, with the high rate of unemployment and poverty, South African women who perform unskilled labour are more susceptible to sexual harassment. To ensure that gender equality is prevalent in the workplace, it is essential that sexual harassers be punished. This is also in compliance with South Africa's obligations under international law. Section 39(2) of the South African Constitution indicates specifically that the South African Bill of Rights must be interpreted in a manner that complies with international law. In relation to sexual harassment, the primary instrument adopted by the International Labour Organization (ILO) is the Discrimination Employment and Occupation Convention.Footnote 15 Article 1(a) provides that discrimination includes any distinction, exclusion or preference made on the basis of sex, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. The Committee of Experts on the Application of Conventions and Recommendations has interpreted the convention and indicated that sexual harassment is a form of sex discrimination that severely infringes upon women's equality rights.Footnote 16 The United Nations also views sexual harassment as a type of violence against women.Footnote 17

In addition to infringing a person's right to equality, sexual harassment also violates the victim's right to dignity. Section 10 of the South African Constitution grants everyone the right to dignity.Footnote 18 According to Justice O Regan, “recognizing a right to dignity is an acknowledgment of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern.”Footnote 19 According to Barbara Loots, sexual harassment infringes on a person's individual autonomy through the exercise of power by targeting a very vulnerable and personal aspect of a person's identity, namely her sexuality.Footnote 20 Sexual harassment treats the victim with disrespect and is a challenge to their intrinsic worth as a human being.

In summary, sexual harassment severely infringes upon the founding values of the South African constitution: dignity and equality.Footnote 21 There is therefore a constitutional imperative to prohibit and punish perpetrators of sexual harassment and to protect victims' fundamental rights. Sexual harassment severely violates the fundamental values of South Africa's new found freedom and should therefore be eradicated as being unconstitutional.

SOUTH AFRICAN LAW AND SEXUAL HARASSMENT

In South Africa sexual harassment is defined very broadly.Footnote 22 According to the Code of Good Practice on the Handling of Sexual Harassment Cases (the Code),Footnote 23 sexual harassment includes physical conduct such as unwanted touching, sexual assault, rape and strip searches by or in the presence of the opposite sex.Footnote 24 It includes verbal conduct such as unwelcome innuendos, sexual advances, comments with sexual overtones, sex related jokes, unwanted inquiries about a person's sex life and the sending by electronic means or otherwise of sexually explicit text.Footnote 25 It also includes non-verbal conduct such as whistling, unwelcome gestures, indecent exposure and unwelcome displays of sexually explicit pictures or objects.Footnote 26 Sexual harassment may occur through victimizationFootnote 27 or through quid pro quo harassmentFootnote 28 and sexual favouritism.Footnote 29 It may be a one-off or an ongoing offence.Footnote 30 Harassment can be perpetrated against the same sex or against the opposite sex.Footnote 31 What is important is that the harassment is unwelcome conductFootnote 32 that severely infringes upon the victim's right to dignity.Footnote 33

South African law provides employees who are subjected to sexual harassment with various remedies. Victims have one of five possible options: two options in terms of the common law; and three statutory law options.Footnote 34

COMMON LAW CLAIMS

The sources of South African common law lie primarily in its colonial roots, which are principally Roman-Dutch and English influences, subject to interpretation and development by the courts. Today the common law still remains a primary source of law where there is no applicable legislation.Footnote 35 In terms of the common law, employees who are victims of sexual harassment have two possible claims against the employer.

Common law option 1: Vicarious liability

By virtue of vicarious liability, employers can be liable for harm caused by their employees, where that harm is caused within the course and scope of their employment.Footnote 36 One of the primary difficulties in holding an employer vicariously liable for sexual harassment by its employee is the fact that employees who commit sexual harassment often act in their own capacity and not within the course and scope of their employment. In K v Minister of Safety and Security,Footnote 37 the South African Constitutional Court expanded the scope of vicarious liability, enabling victims to sue employers vicariously for sexual harassment conducted by their employees.Footnote 38 In this case Ms K, who had been deserted by her boyfriend, was offered a ride home by three uniformed on-duty policemen. While in the vehicle, Ms K was beaten and raped in turn by all three policemen and then released. The three policemen were each convicted and given life sentences for rape and ten years' imprisonment for kidnapping. Ms K instituted a delictual claim against the minister of police for the harm caused to her by the three policemen. Both the South African High Court and the South African Supreme Court of Appeal dismissed her claim, indicating that the three policemen were not acting in the course and scope of their employment.Footnote 39 Ms K challenged the decision in the Constitutional Court. The Constitutional Court developed the test for liability of an employer in cases of intentional wrongdoing by an employee.Footnote 40 It indicated that there are two questions to be asked when determining an employer's vicarious liability. The first is whether the wrongful acts were done solely for the purposes of the employee. This question requires a subjective consideration of the employee's state of mind and is a purely factual question. If this question is answered in the negative, then the employer will be vicariously liable since the employee had acted within the course of his employment. However, even if it is answered in the affirmative, the employer may still be liable vicariously if there is a sufficiently close link between the employee's personal acts and the purposes and business of the employer. This question does not raise purely factual questions, but mixed questions of fact and law. The questions of law it raises relate to what is “sufficiently close” to give rise to vicarious liability. It is in answering this question that a court should consider the need to give effect to the spirit, purport and objects of the Bill of Rights.Footnote 41

The court then applied this test to the facts. Applying the first question to the facts, the court found that the employees were acting in their own interest when raping the victim. It then applied the second question to see whether there was a close link between the employees' conduct and their job. To do so it looked at the spirit and purpose of the constitution in light of the facts. The court held that the constitution places an obligation on the police to protect members of the public,Footnote 42 which it failed to do. The woman trusted the police. They were on duty and were wearing uniform.Footnote 43 The conduct of the policemen who caused harm constituted a simultaneous commission and omission. The commission lay in their brutal rape of the applicant. Their simultaneous omission lay in their failing while on duty to protect her from harm. The court thus concluded that the connection between the conduct of the policemen and their employment was sufficiently close to render the employer liable.Footnote 44 The court sent the matter back to the High Court to determine damages.

The importance of this judgment is that it requires the common law test for vicarious liability to be applied in accordance with the spirit and purpose of the constitution. This ensures that the values of the South African Constitution are enforced and upheld. It correctly holds the state liable for its employee's actions where there is a constitutional obligation on the employee to act and he fails to do so. Whether this obligation also applies to private employers depends on whether the rights in the constitution apply horizontally between the two private parties in accordance with section 8(3) of the constitution. Vicarious liability is thus a limited form of action when it comes to sexual harassment claims against employers. While in K v Minister of Safety and Security there was a close connection between the policemen's actions and the business of their employer, which was to protect the public, one may find it difficult to find a close link between sexual harassment and the employer's business where that business is not to protect members of the public.Footnote 45

Common law option 2: Employer's duty to provide employees with a work environment safe from sexual harassment

Instead of relying on vicarious liability, an employee can sue the employer directly for failing to provide it with a safe work environment. In Media 24 Ltd & Another v Grobler Footnote 46 an employee was sexually harassed by a manager on a number of occasions. He had kissed her in the lift, hugged her in a company room and stuffed his finger in her face threatening sexual innuendos. He had even threatened her with a gun after working hours at her flat. Grobler informed the senior manager of these incidents without any success.Footnote 47 As a result of the sexual harassment over a few months, Grobler suffered post-traumatic stress and sued the employer in delict for the harm that she had suffered.Footnote 48 The Supreme Court of Appeal found the employer liable, not on the basis of vicarious liability but instead for violating its common law duty.Footnote 49 It indicated that Media 24 had negligently breached its legal duty to its employees to create and maintain a working environment in which, amongst other things, its employees were not sexually harassed by other employees in their working environment.Footnote 50 An employer owes a common law duty to its employees to take reasonable care for their safety. The court was of the view that this duty could not be confined to an obligation to take reasonable steps to protect them from physical harm caused by what may be called physical hazards. It had also in appropriate circumstances to include a duty to protect them from psychological harm caused, for example, by sexual harassment by fellow employees. It was clear that the legal convictions of the community require an employer to take reasonable steps to prevent sexual harassment of its employees in the workplace and to compensate the victim for harm caused if it negligently fails to do so.Footnote 51 The court found that the employer failed to provide the victim with a work environment safe from sexual harassment and upheld the High Court's order of R776 814.

In terms of the common law, the employer can therefore be liable for the sexual harassment of its employees on two accounts. First, where the employer is vicariously liable for its employees' conduct in the course of their employment or conduct which is closely linked to their employer's business, having regard to the purpose and spirit of the constitution. Secondly, the common law obliges employers to maintain a working environment safe from physical and psychological hazards including sexual harassment. The employer can be held directly liable if it negligently fails to protect its employees from workplace sexual harassment.

In delict, the victim would be entitled to both patrimonial and non-patrimonial loss [direct and indirect damages]. The victim may suffer physically as well as psychologically. The victim may also sue for violations of her right to dignity.Footnote 52 According to the Prescription Act, the matter prescribes in three years.Footnote 53

STATUTORY LAW

Under statutory law an employee who is victim to sexual harassment has three possible claims against the employer.

Statutory option 1: Failure to comply with the Employment Equity ActFootnote 54

Section 9 of the South African Constitution provides that everyone is equal before the law and is entitled to equal protection of the law. Sections 9(3) and 9(4) prohibit discrimination by both the state and private individuals on a number of grounds, including sex. The constitution expressly obliges the state to pass legislation prohibiting unfair discrimination. To give effect to this constitutional obligation, the state passed the Employment Equity Act (the EEA).Footnote 55 Section 6(1) of the EEA provides that “no person may unfairly discriminate, directly or indirectly, against an employee … on one or more grounds, including … sex”. Section 6(3) stipulates that “harassment of an employee is a form of unfair discrimination and is prohibited”.

For the EEA to apply, both the harasser and victim must be employees. The harassment must take place at work and the harassment must be brought to the employer's attention within a reasonable time.Footnote 56 According to section 60 of the EEA the employer can escape liability if it consults all relevant parties and takes all necessary, reasonably practicable steps to eliminate the alleged conduct and ensure that the employee is not harassed.Footnote 57

Where there is sexual harassment, the dispute can either be resolved internally or be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) within six months of the harassment.Footnote 58 The CCMA must attempt to resolve the dispute through conciliation. If this fails, the applicant may bring the matter to the Labour Court for adjudication, unless the parties agree to arbitration.Footnote 59 The Labour Court has a wide discretion. If it finds that sexual harassment in fact occurred, the court can make any appropriate order that is just and equitable, including the payment of compensation, the payment of damages or an order directing the employer to take preventative steps to prevent the same or similar action occurring in the future.Footnote 60

The EEA provides significant protection to victims of sexual harassment. It expressly obliges the employer to take measures to prevent sexual harassment in the workplace. It provides the Labour Court with wide discretion when making orders and thus serves as a valuable deterrent to sexual harassment in the workplace.Footnote 61 This ensures that employers take sexual harassment seriously and do everything reasonably possible to prohibit sexual harassment in the workplace.

Statutory option 2: Automatically unfair dismissal in terms of the Labour Relations Act

The primary piece of labour legislation in South Africa is the Labour Relations Act 66 of 1995 (the LRA). It regulates a wide range of labour rights including the right to strike, freedom of association, organizational rights, and the regulation of bargaining and statutory councils, workplace fora, unfair labour practices and unfair dismissals. When it comes to sexual harassment, there are two important sections which are relevant: those pertaining to unfair dismissal and unfair labour practices

Under the LRA, an employer can only dismiss an employee on three grounds. These are misconduct, incapacity and operational reasons.Footnote 62 A dismissal that does not fall within any of these three categories will be regarded as unfair. Certain forms of dismissal are so repugnant that they are regarded as automatically unfair. The remedies for automatically unfair dismissals are much greater than for other types of unfair dismissals. In the case of other unfair dismissals, the court may only order compensation of up to 12 months' remuneration.Footnote 63 On the other hand, for automatically unfair dismissals, the court may order the employer to pay compensation of up to 24 months' remuneration.Footnote 64 In addition, as is the case in other types of unfair dismissals, the court may also order reinstatement or re-employment on the same or different terms.Footnote 65 Disputes about automatically unfair dismissals must be reffered for conciliation to the CCMA or relavent bargaining councilFootnote 66 within 30 days of the dismissal. If conciliation fails, the dispute must be referred to the Labour Court within 90 days.Footnote 67

Section 187 of the LRA has a list of categories of automatically unfair dismissals.Footnote 68 Included in this list under section 187(1)(f) is a dismissal where the employer “unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including … sex”. Initially the Labour Court indicated that dismissals of victims of sexual harassment did not amount to discrimination and were therefore not automatically unfair. In Ntsabo v Real Security CC (Ntsabo)Footnote 69 a security guard was sexually harassed by her superior. Despite her complaining to the company, it failed to take any steps to protect her, leaving her with no option but to resign. She sued the employer under the EEA for patrimonial damages, and under the LRA for unfair dismissal and automatically unfair dismissal.Footnote 70 The Labour Court found that she was sexually harassed and she was therefore successful in her claim under the EEA.Footnote 71 The court also found her dismissal to be unfair. It determined that she had been constructively dismissed.Footnote 72 Her life at work had become intolerable due to the sexual harassment, forcing her to resign.Footnote 73 Surprisingly however, the court did not find her dismissal to be automatically unfair. It therefore only ordered compensation of 12 months for unfair dismissal as opposed to 24 months' compensation, which it would have been allowed to do had it found the dismissal to be automatically unfair. This judgment was corrected in Christian v Colliers Properties.Footnote 74 In this case, an employee was sexually victimized and lost her employment as a consequence of that victimization. The court correctly stated that her sexual harassment amounted to discrimination based on sex and ordered the employer to pay her the full 24 months' compensation.

With automatically unfair dismissals, the drafters of the LRA have indicated that they regard certain forms of dismissals to be serious, justifying greater compensation. The Christian v Colliers Properties judgment correctly regarded sexual harassment as a form of sex discrimination, declaring the dismissal to be automatically unfair and thus justifying a 24 month compensation order. It provides victims of workplace sexual harassment dismissal with significant protection.

Statutory option 3: Unfair labour practices under the Labour Relations Act

An employee who is suspended or demoted or denied promotion, training or benefits for failing to give in to the sexual advances of an employer or fellow employee can sue the employer for committing an unfair labour practice.Footnote 75 The matter must be referred to conciliation and, if that fails, arbitration.Footnote 76 The arbitrator can order reinstatement, reemployment or up to 12 months' compensation.Footnote 77

In addition to the fair labour practice protection given to employees under the LRA, an employee is also given a wider constitutional right to fair labour practices. Sexual harassment violates section 23(1) of the South African Constitution, which provides that: “Everyone has the right to fair labour practices”. In Piliso v Old Mutual Life Assurance Co (SA) Ltd and Others,Footnote 78 the Labour Court indicated that an employee's right to “fair labour practices” had been violated where the employer failed to protect an employee who had been the victim of sexual harassment in the workplace. The Labour Court indicated that, where an employee is traumatized in the workplace, the legal convictions of the community require the employer to conduct a thorough investigation to try and find the perpetrator, to support the employee through counselling so as to minimize the psychological trauma suffered by her, to communicate regularly with the employee about her needs and to do everything reasonably possible to prevent the incident from reoccurring.Footnote 79

CONCLUSION

In South Africa, victims of workplace sexual harassment have various remedies against the employer. Under the common law they can sue the employer if the employer negligently fails to provide employees with a workplace that is safe from sexual harassment. The employee can also sue the employer for being vicariously liable for sexual harassment perpetrated by its employees. This claim is however limited, since the employee must be acting within the course and scope of his employment when sexually harassing a victim. This may not always be the case and there may not always be a close connection between the employee's actions and the business of the employer. Under the common law a victim of sexual harassment would therefore be more likely to succeed if she sues the employer directly for negligently failing to provide her with a workplace safe from sexual harassment. The victim has three years to sue the employer in the civil courts. The victim can use the Lex Aquilia to claim for patrimonial loss sustained by the sexual harassment. She can use the actio iniuriarum for the violation of her personal rights to dignity. She may also claim general damages for pain and suffering that have resulted from the sexual harassment, such as mental distress or shock.

In addition to the common law, a victim of sexual harassment can also use statutory law. She has one of three claims. Under the EEA, an employee who is a victim of sexual harassment in the workplace either through touching, verbal or non-verbal conduct can sue the employer. She must refer the matter to the Labour Court within six months. The Labour Court has wide discretion in the types of remedies that it can award. It can order the employer to pay damages, compensation or to take preventative steps to stop the harassment from continuing. An employee who is dismissed for refusing to give in to her employer's sexual advances can sue the employer for her automatically unfair dismissal under the LRA. She must first refer the matter to the CCMA or bargaining council for conciliation within 30 days of the dismissal. Failing this, she can refer the matter to the Labour Court. The Labour Court can order that she be reinstated, reemployed or be paid up to 24 months' compensation. Where an employee is not dismissed but merely demoted or denied a promotion or benefit for refusing to give in to the employer's sexual advances, the employee can challenge the employer's actions as an unfair labour practice. She must first refer the matter to for conciliation. If conciliation fails, she may then refer the matter to arbitration. The arbitrator can order that she be reinstated, reemployed or be paid up to 12 months' compensation.

In theory, South African law provides victims of sexual harassment with significant protection. In practice however, women still remain extremely vulnerable. Women often find themselves subject to severe sexual abuse and even rape. In order to ensure that the constitutional values are protected, it is essential that the socio-economic status of women be uplifted. It is essential that gender stereotypes are overcome and that the right to equality be given meaningful and substantive value.Footnote 80 In S v Makwanyane, Justice Chaskelson stated that: “The very reason for establishing the new legal order was to protect the rights of minorities and others who cannot protect their rights adequately … Those who are entitled to claim this protection include the social outcast and marginalized people in society. It is only if there is a willingness to protect … the weakest amongst us that all of us can be secure that our own rights will be protected”.Footnote 81 Thus the South African Constitution and its new found freedoms will only be meaningful if they are respected and enjoyed by all South Africans. Sexual harassment is a severe threat to this new found freedom and must be overcome not only in theory but also in practice. State authorities need to be more vigilant in applying the law. Sexual harassers and their employers must be held accountable for failing to do so. Victims must be made aware of their rights and must have access to legal processes. The state needs to be sensitive to the needs of victims. They must also have access to counselling if needed. However, education is fundamental if sexual harassment is to be restricted. Adult education programmes as well as programmes within primary and tertiary institutions must make students aware not only of their rights but also of their responsibilities. With over 300 years of apartheid, South African history is plagued with the struggle for equality. To achieve equality, all South Africans have the responsibility to respect South African history and to move forward to a new dispensation that gives effect to the constitutional values of dignity and equality.

Footnotes

Ibid.
Ibid.
Ibid.
Ibid.

References

1 Y Geyser “We became the bad women: We created all of the chaos” (2007) August HR Highway 48 at 48.

2 Huda, S “Sexual harassment and professional women in Bangladesh” (2003) 52 Asia-Pacific Journal on Human Rights and the Law 54 at 54Google Scholar.

3 Id at 55.

4 Wet, C De “The voices of victims of sexual harassment” (2008) Education as Change 109 at 110CrossRefGoogle Scholar.

5 Swinney, G “Effect of sexual harassment on the economy” (2006/2007) Human Capital Management 164 at 164Google Scholar.

6 Ibid.

7 Scherlen, R “NAFTA(ization) of sexual harassment: The experience of Canada, Mexico and the United States” (1997) 3 NAFTA: Law and Business Review of the Americas 96 at 96Google Scholar.

8 Ibid.

9 The Republic of South Africa Act 200 of 1993 was replaced by the Constitution of the Republic of South Africa Act 108 of 1996 (the South African Constitution).

10 The values of equality and dignity are mentioned in sec 1 of the South African Constitution and rights to equality and dignity are specifically protected in secs 9 and 10.

11 Sec 9 of the South African Constitution provides:

  1. (1)

    (1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

  2. (2)

    (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

  3. (3)

    (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth.

  4. (4)

    (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

  5. (5)

    (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.”

12 Loots, BE “Sexual harassment and vicarious liability: A warning to political parties” (2008) 1 Stellenbosch Law Review 143 at 151Google Scholar.

13 Speas, A “Sexual harassment in Mexico: Is NAFTA enough”(2006) 12 NAFTA: Law and Business Review of the Americas 10 at 10Google Scholar.

14 Loots “Sexual harassment and vicarious liability”, above at note 12 at 151.

15 Convention C111 of 1958.

16 For more on the ILO and sex discrimination, see: Antwi, EA “Women in the world of work: After eighty-six years, has the International Labour Organization done enough to promote equality?” (2006) 31 International and Comparative Law Journal 793Google Scholar.

17 Speas “Sexual harassment in Mexico”, above at note 13 at 151.

18 This section states: “Everyone has inherent dignity and the right to have their dignity respected and protected”.

19 S v Makwanyane 1995 (3) SA 391 (CC) at para 328.

20 Loots “Sexual harassment and vicarious liability”, above at note 12 at 149.

21 Sexual harassment also violates sec 23(1) of the South African Constitution, which provides: “Everyone has the right to fair labour practices”. See notes 78 and 79 below. In Piliso v Old Mutual Life Assurance Co (SA) Ltd and Others (2007) 28 ILJ 897 (LC) the Labour Court indicated that an employee's right to “fair labour practices” had been violated where the employer failed to protect an employee who had been the victim of sexual harassment in the workplace. The Labour Court indicated that, where an employee is traumatized in the workplace, the legal convictions of the community require the employer to conduct a thorough investigation to try and find the perpetrator, to support the employee through counselling so as to minimize the psychological trauma suffered by her, to communicate regularly with the employee about her needs and to do everything reasonably possible to prevent the incident from reoccurring. For analysis of this judgment, see A Van Niekerk Labor@Work (2008, LexisNexis Publishers) at 142.

22 For analysis of the South African definition of sexual harassment, see Basson, A “Sexual harassment in the workplace: An overview of developments” (2007) 3 Stellenbosch Law Review 425 at 425Google Scholar.

23 2005genN 1357 in 27865 of 4 August 2005.

24 Sec 5(3)(1)(1) of the Code.

25 Id, sec 5(3)(1)(2).

26 Id, sec 5(3)(1)(3).

27 Sec 5(3)(2)(1) of the Code provides: “Victimization occurs where an employee is victimized or intimidated for failing to submit to sexual advances”.

28 Sec 5(3)(3)(2) of the Code provides: “Quid pro quo harassment occurs where a person such as an owner, employer, supervisor, member of management or co-employee, influences or attempts to influence an employee's employment circumstances (for example engagement, promotion, training, discipline, dismissal, salary increments or other benefits) by coercing or attempting to coerce an employee to surrender to sexual advances. This could include sexual favoritism, which occurs where a person in authority in the workplace rewards only those who respond to his or her sexual advances”.

29 Id, sec 5(3)(2).

30 Id, sec 5(3)(3).

31 Id, sec 5(3)(1)(1).

32 Id, sec 4(2). According to Robert Husbands, “where to draw the line between acceptable flirting and unwelcome, offensive conduct is not always obvious. The conduct itself may not be inherently offensive for many types of social interaction. Indeed, in certain circumstances social invitations or flattering comments may even be desired by one person from another in a workplace setting. Therefore, the real question is not whether the conduct is offensive, but whether it is welcome from a given individual. This is in contrast to other types of harassment based on racial, ethnic or religious characteristics where there is usually little difficulty in determining whether conduct constitutes harassment because the conduct by its very nature is offensive.” See Husbands, R “Sexual harassment law in employment: An international perspective” (1992) 131 International Labour Review 535 at 535Google Scholar.

33 Id, sec 4(4). According to Du Toit, the courts will take into account the positions of both the perpetrator and the victim. They will have regard to the positions of the victim and the perpetrator in the workplace, as well as the complainant's subjective experience. See Toit, D DuLabour Relations Law: A Comprehensive Guide (2006, LexisNexis Publications) at 613Google Scholar.

34 Under the Compensation for Occupational Injuries and Disease Act 130 of 1993 (COIDA), employers are required to make payments to a compensation fund regulated by the compensation commissioner. Employees injured by accidents or disease at work can claim compensation. Claims are lodged with the director general of labour and are an administrative rather then litigious process. Once a claim has been made under COIDA, the employer cannot be sued under common law for negligence at the workplace. An argument often made by employers who are sued for workplace sexual harassment is that the employee must make a claim from the compensation fund and should not sue the employer. This was rejected by the Labour Court. In Ntsabo v Real Security CC (2003) 24 ILJ 2341 (LC), the Labour Court held that sexual harassment is not related to the course and scope of a person's employment, hence any disease or injury arising from sexual harassment cannot be under COIDA. Victims of workplace sexual harassment can therefore not claim from the fund and must sue the employer directly using one of the statutory or common law remedies available.

35 Fouche, MA Practical Guide to Labour Law (1999, LexisNexis Publishers) 11 at 11Google Scholar.

36 Walt, JC Van DerPrinciples of Delict (3rd ed, 2005, Juta Publishers) at 36Google Scholar.

37 2005 (6) SA 419 (CC).

38 Mukheibier, A “An overview of sexual harassment” (2006) OBITER 245 at 245Google Scholar.

39 K v Minister of Safety and Security, above at note 37 at 425, para G.

40 The court quoted (id at 436 at para B) from Estate Van der Byl v Swanepoel 1927 AD 141 at 1250: “An act done by a servant solely for his own interests and purposes, although occasioned by his employment, may fall outside the course or scope of his employment, and that in deciding whether an act by the servant does so fall, some reference is to be made to the servant's intention. The test is in this regard subjective. On the other hand, if there is nevertheless a sufficiently close link between the servant's acts for his own interests and purposes and the business of his master, the master may yet be liable. This is an objective test.”

41 The common law test for vicarious liability in deviation cases as developed in Minister of Police v Rabie (1) SA 117 A needs to be applied to new sets of facts in each case in the light of the spirit, purport and objects of the constitution: “The test is one which contains both a factual assessment (the question of the subjective intention of the perpetrators of the delict) as well as a consideration which raises a question of mixed fact and law, the objective question of whether the delict committed is ‘sufficiently connected to the business of the employer’ to render the employer liable”.

42 Sec 205 of the South African Constitution provides:

  1. “(1)

    “(1) The national police service must be structured to function in the national, provincial and, where appropriate, local spheres of government.

  2. (2)

    (2) National legislation must establish the powers and functions of the police service and must enable the police service to discharge its responsibilities effectively, taking into account the requirements of the provinces.

  3. (3)

    (3) The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.”

43 K v Minister of Safety and Security, above at note 37 at 443, paras F–J.

44 Id at 444, para B.

45 For an analysis of the limited application of vicarious liability claims in sexual harassment cases, see T Orleyn Sexual Harassment in the Workplace (2005, LexisNexis) at 75.

46 (2005) 26 ILJ 1007 (SCA).

47 Id at 1007, para E.

48 Ibid.

49 Id at 1024, para E.

50 Ibid.

51 Id at 1025, para J.

52 The victim can use the Lex Aquilia [Roman law principle of providing compensation to the owner of property damaged by someone's fault] to claim for patrimonial loss sustained by the sexual harassment. She can use the actio iniuriarum [action for compensation for an intentional injury to one's bodily and mental integrity] for the violation of her personal rights to dignity. She may also claim general damages for pain and suffering that has resulted from the sexual harassment, such as mental distress or shock. See J Neethling Law of Delict (2006, Juta Publishers) at 238.

53 Prescription Act 18 of 1969.

54 Act 55 of 1998. The state also passed the Prevention of Unfair Discrimination Act 4 of 2000, although this act does not apply expressly to the workplace.

55 The act prohibits discrimination and promotes affirmative action.

56 According to sec 8.1.1 of the Code and sec 60(1) of the EEA, conduct contravening the EEA must immediately be brought to the attention of the employer. Under sec 8.1.2 of the Code, in instances of sexual harassment, the word “immediately” shall mean as soon as is reasonably possible in the circumstances and without undue delay, taking into account the nature of sexual harassment, including the fact that that it is a sensitive issue, that the complainant may fear reprisals and the relative positions of the complainant and the alleged perpetrator in the workplace.

57 Sec 60 of the EEA. For analysis of this section, see R Le Roux “Section 60 of the Employment Equity Act 1998: Will a comparative approach shake this joker out of the pack?” (2006) 27 OBITER 411.

58 Id, sec 10(4).

59 Id, sec 10(6).

60 Id, sec 50(2).

61 For example, in Ntsabo v Real Security CC (2003) 24 ILJ 2341 (LC) the Labour Court ordered R50,000 compensation where an employee was sexually harassed over a period of seven months. In Christian v Colliers Properties the court found an employer guilty of sexual harassment in violation of secs 6(1) and 6(3) of the EEA and indicated that, in determining damages, the court must consider a number of factors including the duration, extent and frequency of the harassment, the extent to which the acts of harassment are blatant and intrusive, the arrogance and maliciousness attributable to the harassing party, and the consequences to the victim. The court indicated that an appropriate amount should be determined in light of the specific factors before the judge. In this case the court ordered the employer to make a payment of R10,000 since it failed to take reasonable steps to prevent the harassment and the employer himself had arrogantly harassed the victim. The court only ordered R10,000 since the employee had worked for the employer for just two days and there was no evidence of psychological harm.

62 Sec 188 of the LRA.

63 Id, sec 194.

64 Id, sec 194(3).

65 According to sec 193(2) of the LRA, the adjudicator will not order reinstatement or re-employment:

  1. (a)

    (a) Where the employee does not wish to be reinstated;

  2. (b)

    (b) Where the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;

  3. (c)

    (c) Where it is not reasonably practical for the employer to reinstate or re-employ the employee;

  4. (d)

    (d) Where the dismissal is only procedurally unfair.

However when a dismissal is automatically unfair, (d) would not come into operation since we looking at the reason for the dismissal.

66 Id, sec 191(4).

67 Id, sec 191(5)(b)(i).

68 According to secs 187(1)(a) and 187(b), a dismissal is automatically unfair if the reason for the dismissal is:

  1. “(a)

    “(a) that the employee participated in or supported, or indicated an intention to participate in or support, a strike or protest action that complies with the provisions of Chapter IV [of the LRA];

  2. (b)

    (b) that the employee refused or indicated an intention to refuse, to do any work normally done by an employee who at the time was taking part in a [protected] strike … unless that work is necessary to prevent an actual danger to life, personal safety or health.”

69 Above at note 34.

70 Id at 2342, para C.

71 Id at 2342, para G.

72 For a discussion of constructive dismissal and sexual harassment, see Christianson, MEssential Labour (2005, Labour Law Publications) at 210Google Scholar.

73 Ntsabo, above at note 34 at 2342, para D.

74 [2005] JOL 13888 (LC).

75 LRA, secs 186(2)(a) and 186(2)(b).

76 The matter must be referred to the CCMA or the respective bargaining council within 90 days of the unfair labour practice occurring. See sec 193(4) of the LRA.

77 Id, sec 194(4).

78 Above at note 21.

79 For analysis of this judgment, see A Van Niekerk Labor@Work, above at note 21 at 142.

80 For a discussion of the impact of sexual harassment in society, see: Palm-Foster, T “The voices of victims of sexual harassment” (2008) 12 Education as Change 109Google Scholar. According to Ian Currie: “The legacy of inequality inherited from the past means that Constitutional commitment to equality cannot simply be understood as a commitment to formal equality. That will result in a society that is formally equal but that is radically unequal in every other way”: Currie, IThe Bill of Rights Handbook (4th ed, 2001, Juta) at 199Google Scholar.

81 S v Makwanyane, above at note 19, para 98.