BusinessTech
Section 60(2) of the Employment Equity Act requires that if a sexual harassment incident is alleged at work, the employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct.
This issue was recently dealt with in the Labour Court case of Shoprite Checkers (Pty) Ltd v JL, with the court providing practical insights as to what is expected of employers when they consult with parties in cases of alleged sexual harassment, says legal firm ENSAfrica.
The case
In this matter a teller sales clerk identified as ‘JL’, was assisting the general manager, identified as ‘KB’, to assess the status of an order. JL claimed that while she was accessing a computer, KB slapped her on her left buttock and immediately thereafter giggled.
A grievance was laid, and Shoprite investigated the allegation by interviewing JL, KB, and possible witnesses. As is often the case in sexual harassment claims, it was the JL’s word against that of KB. JL and KB therefore also underwent a polygraph test.
“The investigation eventually concluded that there was insufficient evidence to support the complainant,” ENSAfrica said.
“While the judgment deals with numerous legal aspects regarding the sexual harassment complaint and surrounding circumstances, the judgment provides pertinent considerations for employers when investigating complaints of sexual harassment.”
Despite Shoprite having interviewed all parties and having conducted polygraph tests, the Labour Court found that Shoprite had failed to take the necessary steps it should have taken, in the manner it initiated and conducted the investigation.
Specifically, an issue was raised regarding the following aspects of the investigation:
Ruling
The Labour Court found that Shoprite’s conduct, while not the most egregious example of an employer’s failure to deal with a sexual harassment complaint adequately, fell short of what was necessary.
In particular, the Labour Court found that the treatment of JL and KB was not even-handed, and no advice was given to JL on the different ways the matter could be handled. Compensation in the amount of R25,000 was awarded to JL.
ENSAfrica said the judgment highlights that, when investigating or consulting with employees regarding sexual harassment allegations, employers may wish to consider the following:
The judgment highlights the seriousness with which the courts consider allegations of sexual harassment, said ENSAfrica.
The Labour Appeal Court has described it as “the most heinous misconduct that plagues a workplace”, and the value of a fair investigation into sexual harassment allegations has been emphasized by the judgment, ENSAfrica said.
“Because of the naturally sensitive nature of sexual harassment complaints, as well as the harm that may be caused to all parties, but particularly victims, it is important that legal advice be sought to ensure complaints are investigated adequately and even-handedly.
“This is not only to ensure that all parties are dealt with fairly, but also to ensure that employers do not incur liability.”
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