Sexual harassment in the workplace has become prevalent and has had devastating effects.
The LAC remarked in Campbell Scientific Africa (Pty) Ltd v Simmers & Others that by its nature, sexual harassment creates an offensive and very often intimidating work environment that undermines the dignity, privacy and integrity of the victim, and creates a barrier to substantive equality in the workplace.
It is the most heinous misconduct that plagues a workplace.
In this article, we examine the recent sexual assault case that was before the High Court in P-A-E v DR Beyers Naudes Local Municipality and Another (13 April 2021).
The plaintiff, a 23-year-old female, was employed as a Registry and Archives Clerk at Ikwezi Municipality.
The Municipality was disestablished and replaced by Dr. Beyers Naude Local Municipality.
She was sexually assaulted by her immediate supervisor.
When she could no longer cope with her work situation owing to Post Traumatic Stress Disorder, she resigned.
On 16 March 2011, the plaintiff brought an action for damages for past and future medical related expenses, past and future loss of income, and general damages and contumelia, in the sum of R4,028,416.80 jointly and severally from the first and second defendant arising out of the sexual assault committed upon her by the second defendant during the course of his duties with the first defendant at the offices of the first defendant in Jansenville on Monday 16 November 2009.
At the outset of the trial before the High Court during October 2015, the issues of liability and quantum were separated in terms of Rule 33(4) of the rules of court and the trial proceeded on the merits only.
On 31 March 2016 the court found the Defendants jointly and severally liable to pay the plaintiff such damages as she may be able to prove she suffered in consequence of the sexual assault upon her.
The judgment of the court has been reported as PE v Ikwezi Municipality and Another 2016 (5) SA 114 (ECG) (First judgment).
Following the decision of the court in the first judgment, the court was then required to adjudicate on the issue of quantum.
At the trial on quantum the court considered the nature of the offence of sexual assault and the effect of the assault on the plaintiff. The court observed that the scourge of workplace sexual harassment is more often than not gender specific. Sexual assault by a male superior on a female subordinate is a deplorable abuse of power and a terrifying vehicle utilised by the superior to sexualise his control over the victim in a show of pernicious patriarchal dominance.
The court also criticised the Municipality for the unsatisfactory manner in which it handled the matter.
The Municipality on contentious legal advice, and without any satisfactory reason, took a decision not to suspend the second defendant.
Furthermore, elected to instruct the second defendant to rather remain at their Klipplaat office and not have any contact with the plaintiff who was based in the Jansenville office. In addition to failing to ensure that the second defendant did indeed not have contact with the plaintiff, the Municipality also failed to prioritise disciplinary proceedings against the second defendant. A hearing was only held more than half a year after the assault.
The enquiry chairperson recommended a sanction of two weeks’ unpaid suspension. Expressing its disapproval, the Court held that the Municipality, as an organ of State, was entitled and obliged given its obligation stipulated in Section 195 of the Constitution to challenge the recommended sanction which was, on the face of it, indefensible. Instead, the Municipality “washed its hands of the matter” when it informed the plaintiff that- “with the best will in the world there was nothing that [the Municipality] could do to prevent the second defendant returning to work or to prevent second defendant from coming into contact with her in the course of his duties.”
The LAC reiterated the reasoning of the court a quo’s judgment that the Municipality had clearly abdicated its responsibilities to protect the plaintiff. Instead, it adopted a supine approach of bovine resignation. The message portrayed by its conduct was that victims of sexual assault who were brave enough to come forward would not receive redress. The unrepentant perpetrator was allowed to roam free in the workplace with unfettered access to the plaintiff. There was no corporate repentance.
One of the main issues to be determined was whether the plaintiff should forfeit her claim for future loss of earnings because of her refusal to accept the Municipality’s 10 July 2020 offer of reinstatement to a position commensurate with that which she occupied prior to the end of her tenure in November 2010.
The question was whether the reservation of a post on the organogram for the plaintiff intended to settle her claim for future loss of earnings would contravene the Municipality’s recruitment policies and thus be unlawful.
The court found that there was no statutory authority to base the offer.
Furthermore, just as it would be impermissible for the Road Accident Fund to offer a job to a litigant who has suffered injuries pursuant to a motor vehicle accident and who has put in a claim for future loss of earnings with the aim of extinguishing that claim, so too would it be unlawful for the Municipality to offer plaintiff a job with a view to non-suiting her in respect of her claim for future loss of earnings. Fundamentally, an [employer] is required to fill vacancies on its staff establishment according to its operational requirements and in terms of applicable procedures and not for an ulterior purpose such as the settling of litigation.
Therefore, the offer was unlawful and ultra vires as it would contravene those policies and undermine legislation which require the recruitment, selection and appointment of persons as staff members to be done in a fair and transparent manner. Furthermore, as an organ of state, the Municipality had no authority to disregard its own policies when it suits it and to make an appointment which would be inconsistent with legislation.
The Municipality raised a special plea in terms of section 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) which states that no action shall lie by an employee for recovery of damages in respect of any occupational injury or disease resulting in the disablement or death of the employee against the employer and no liability for compensation arises except under the provisions of the Act. The relief sought by the plaintiff was not competent in that the claim was not brought under COIDA.
The court held that exposure to sexual harassment is not an inherent or necessary risk of employment. It would be averse to the interest of employees injured by rape or sexual harassment to restrict them to COIDA.
This would be sending an unacceptable message to employees, especially women, namely that you are precluded from suing your employer for what you assert is a failure to provide reasonable protective measures against rape and sexual assault because rape and sexual assault directed against women is a risk inherent in employment in South Africa, and this would not be countenanced by the Constitution.
Therefore, the special plea in terms of section 35 of COIDA was not upheld. Ultimately, the court concluded that the Municipality had failed in its legal duty to protect plaintiff from further trauma occasioned by any interaction with second defendant pending the disciplinary enquiry.
The Court, referring to the dictum in Ntsabo v Real Security CC 2003 24 ILJ 2341 (LC) where it was held that the employer had effectively supported the harasser by not sanctioning him, found that the stance adopted by the Municipality demonstrated a disturbing lack of appreciation of its legal obligation to have provided the plaintiff with a safe working environment. The court found the First and Second Defendants jointly and severally liable, the one paying the other to be absolved, to pay the plaintiff an amount of R4 Million in damages. Key take away Sexual harassment may give rise to a claim under the EEA, LRA (constructive dismissal), as well as delict.
Employers have a duty to show courtesy and respect victims of sexual assault which occur in the workplace or in the course of performing their duties in furtherance of the employer’s interests. Furthermore, provide a safe working environment. Recently, in McGregor v Department of Health, Western Cape & others (2021), the LAC held that employers: “…have a duty to provide a safe and healthy work environment for their employees and students, including protection from senior employees of predatory disposition.” Section 5 of the Employment Equity Act 55 of 1998 requires an employer to take steps to eliminate unfair discrimination which would include putting in place a sexual harassment policy.
The Code of Good Practice for the Handling of Sexual Harassment Cases encourages and promotes the development and implementation of policies and procedures that will lead to the creation of workplaces that are free of sexual harassment, where employers and employees respect one another’s integrity and dignity, their privacy, and their right to equity in the workplace.
Item 7.1 requires employers to adopt a sexual harassment policy which takes cognisance of the provisions of the Code.
An employer cannot rely on COIDA to absolve itself from liability for compensation for its failure to protect its employees from exposure to sexual harassment in the workplace. Sexual harassment is not an inherent or necessary risk of employment.
Phetheni Nkuna and Mthokozisi Zungu
