Liberty Group Ltd v M (JA105/2015) [2017] ZALAC 19 ; [2017] JOL 38115; [2017] 10 BLLR 991; (2017) ILJ 1318 (LAC) (7 March 2017) per Savage AJA (Waglay JP and Phatshoane AJA concurring)

Sexual harassment and damages awarded.  The LAC disallowed the employer’s appeal and awarded damages of R250,000.  The employer breached s 60 of the Employment Equity Act 55 of 1998 (EEA) relating to sexual harassment by a manager.

The employer failed to comply with ss 60(2) and (4) of the EEA and consult all relevant parties and take the necessary steps to eliminate the conduct.  The employer also failed to do all that was reasonably practicable to prevent further contraventions of the EEA.

Excerpts from judgment (without footnotes)

Issues in appeal

[26]   In issue in this appeal is whether the Labour Court misdirected itself in:

2.1   failing to apply s 60 of the EEA correctly;

2.2   finding that the respondent had proved on a balance of probabilities that the respondent’s manager, Mr Andrew Mosesi, contravened a provision of the EEA in committing sexual harassment;

2.3   finding that the respondent brought the alleged conduct to the attention of the appellant in the manner contemplated by s 60(1) of the EEA;

2.4   finding that the appellant failed to consult relevant parties and take the necessary steps to eliminate the misconduct alleged.

2.5   In the alternative, if sexual harassment was proved –

  • whether the appellant having had such conduct brought to its attention failed to take the necessary steps set out in s 60(2) of the EEA;
  • whether the Labour Court erred and misdirected itself by failing to find that the appellant did all that was reasonably practicable to ensure that Mr Mosesi as its employee would not act in contravention of the EEA.

. . . . .

Evaluation

[31]   The EEA requires every employer to promote equal opportunity in the workplace[1] and ensure that no person unfairly discriminates, directly or indirectly, against an employee, in any employment policy or practice on one or more grounds, which include [2]

[32]   In treating harassment as a form of unfair discrimination in s 6(3),[3] the EEA recognises that such conduct poses a barrier to the achievement of substantive equality in the workplace by creating an arbitrary barrier to the full and equal enjoyment of an employee’s rights, violating that person’s dignity and limiting their right to equality at work.[4]

[33]   Sexual harassment is defined in the Amended Code on the Handling of Sexual Harassment in the Workplace[5] as:

‘…unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace, taking into account all of the following factors:

4.1       whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation;

4.2       whether the sexual conduct was unwelcome;

4.3       the nature and extent of the sexual conduct; and

4.4       the impact of the sexual conduct on the employee.’ [6]

[34]   Section 60 of the EEA provides that:

‘(1)       If it is alleged that an employee, while at work, contravened a provision of this Act, or engaged in any conduct that, if engaged in by that employee’s employer, would constitute a contravention of a provision of this Act, the alleged conduct must immediately be brought to the attention of the employer.

(2)        The employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct and comply with the provisions of this Act.

(3)        If the employer fails to take the necessary steps referred to in subsection 2, and it is proved that the employee has contravened the relevant provision, the employer must be deemed also to have contravened that provision.

(4)        Despite subsection (3), an employer is not liable for the conduct of an employee if that employer 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.’

[35]   While it is clear that s 60 imposes liability on an employer where a provision of the EEA has been contravened,[7] in its construction and wording the provision is not a model of clarity. The result is that confusion has arisen regarding what is required to prove an employer liability under s60, with the requirements of s 60(2) often being conflated with those of s 60(4).  As much was evident in the decision of Matambuye v MEC for Education and Others,[8] in which the Labour Court noted that it was not required to decide whether s 60(2) refers to steps the employer must take immediately following a report of harassment and whether subsection (4) refers to reasonable steps that the employer must take in advance to eliminate and prevent acts of unfair discrimination.

[36]   Much of the lack of clarity as to what must be proved under s 60 centres on s 60(4). The debate has often turned on whether the reference to an employer’s obligation “to ensure that the employee would not act in contravention of this Act” is intended to mean that the employer take steps in advance to eliminate future conduct.  The unduly narrow interpretation given to s 60 in Mokoena and Another v Garden Art (Pty) Ltd and Another[9] has, correctly in my mind, been criticised for permitting a conclusion that liability arises only where the harassment is repeated after an initial complaint is lodged and then only where the employer had failed to take reasonable steps to prevent such further harassment.

[37]   It seems to me that a preferable interpretation was given to s 60 in Biggar v City of Johannesburg, Emergency Management Services [10] in which the Court found that the employer had failed to take all necessary steps to eliminate racial abuse perpetrated by its employees and to have failed to do everything reasonably practicable to prevent continued harassment. This followed sustained racial harassment of the applicant and his family by co-employees in residential premises provided by the employer.

[38]   The Court in Potgieter v National Commissioner of the SA Police Service and Another (Potgieter)[11] usefully set out the requirements for employer liability to arise under the EEA where the complaint raised is one of sexual harassment. These are that:

  • The sexual harassment conduct complained of was committed by another employee.
  • It was sexual harassment constituting unfair discrimination.
  • The sexual harassment took place at the workplace.
  • The alleged sexual harassment was immediately brought to the attention of the employer.
  • The employer was aware of the incident of sexual harassment.
  • The employer failed to consult all relevant parties, or take the necessary steps to eliminate the conduct will otherwise comply with the provisions of the EEA.
  • The employer failed to take all reasonable and practical measures to ensure that employees did not act in contravention of the EEA.

[39]   It is noteworthy that in recording the last requirement as whether the employer failed to take steps to ensure that employees “did not” act in contravention of the EEA, Potgieter moves away from the words “would not” in s 60 (4).

Existence of sexual harassment

[40]   In disputing the veracity of the respondent’s claim that Mr Mosesi had sexually harassed her, the appellant takes issue with the Labour Court’s credibility and reliability findings favourable to the respondent and with the Court’s conclusion that inconsistencies in her evidence were inconsequential.

[41]   It is trite that on appeal, the court lacks “the advantage of judging the credibility of witnesses by observing their deportment in the witness-box” [12] and that credibility findings are not to be judged in isolation, but are to be considered in light of proven facts and the probabilities of the matter.[13] Where credibility findings are made, an appeal court will disturb such findings where these are plainly wrong or the assessment of the probabilities undertaken was inadequate and unsatisfactory such as to amount to a material misdirection on facts.[14]

[42]   The Labour Court formed its view as to the veracity and reliability of the respondent’s evidence having regard to her demeanour, the calibre of her testimony, contradictions which arose in her evidence considered against that of other witnesses and the probabilities. It did so without the benefit of Mr Mosesi’s evidence, as the only other party to the harassment alleged, who was not called by the appellant to testify.

[43]   Remarkable about the appellant’s approach to the matter is that it denied the allegations of sexual harassment without direct evidence in support of such denial, making suggestions such as that it was “instructive” that the respondent continued to refer to Mr Mosesi as “Andrew” notwithstanding the fact that he had allegedly harassed her.

[44]   From the record what is apparent is a vicious and sustained attack launched by the appellant, through its counsel, on the respondent’s person, her motives and credibility and the reliability of her evidence over some three days of unacceptably harsh, cruel and vicious cross-examination. The result was that she became victim to unwarranted and unjustified secondary harassment at the hands of the appellant, an issue that was taken up by this Court with counsel at the outset of the hearing.

[45]   The Labour Court cannot be faulted for the manner in which it assessed the respondent’s evidence. The Court had appropriate regard, in weighing up the evidence before it, to factors which impacted on the respondent’s recall of specific dates, including the lapse of time between the conduct and her testifying in court.  While the respondent had difficulties in recalling precise dates on which the incidents occurred and omitted details which she had previously included in her founding affidavit, the Court placed limited store on these discrepancies given the extended period of time which had elapsed since the harassment and the nature of the discrepancies, accepting that the respondent had nevertheless proved that she had been sexually harassed by Mr Mosesi.

[46]   With no evidence put up by the appellant to contradict her version, the Labour Court cannot be faulted for its finding on the probabilities that sexual harassment occurred. The omissions and inconsistencies in the respondent’s evidence did not warrant a wholesale rejection of her version as to the existence of sexual harassment.[15] The Court cannot be faulted for its finding that the appellant did not succeed in showing that the respondent was motivated to raise false accusations against Mr Mosesi as her superior so as to obtain a salary increase given her financial situation or its finding that her financial situation had “rendered [her] vulnerable to Mosesi’s manipulations by making promises of training to [her]”.  There was furthermore no evidence before the Labour Court to support the appellant’s unfounded contention that the respondent was intent on extorting money from it by raising false allegations of sexual harassment against Mr Mosesi.

[47]   In the circumstances, the Court’s finding that the respondent had proved her sexual harassment at the hands of Mr Mosesi must stand. It follows that the Labour Court correctly found that the respondent had proved the existence of conduct amounting to unfair discrimination as defined in the EEA.

. . . . .

Report of the conduct

. . . . .

[52]   The stated purpose of the EEA is to provide for employment equity through inter alia eliminating unfair discrimination in employment, ensuring the implementation of employment equity to redress the effects of discrimination and achieving a broadly representative workforce. The requirement that conduct in contravention of the Act be brought to the attention of the employer “immediately” seeks to place the employer in a position to act in the manner required of it in terms of s 60.

. . . . .

Appellant’s response to report

. . . . .

[58]   It follows that the Labour Court correctly found that having brought the conduct to the attention of the appellant, the steps required by s 60(2), to “consult with the relevant parties” and take to “take the necessary steps to eliminate the alleged conduct and comply with the provisions of the Act” were not complied with by the appellant.

Liability under s 60

[59]   The appellant contends that the Labour Court erred and misdirected itself in its approach to liability under s 60. An employer is deemed liable under s 60(3) where the conduct in contravention of the EEA has been proved and the employer failed, under s 60(2) to “consult with the relevant parties” and fail to “take the necessary steps to eliminate the alleged conduct and comply with the provisions of the Act”.

. . . . .

[63]   In its approach to the interpretation of s 60 and the hostile manner of its defence to the respondent’s claim, the appellant not only failed to have regard to the purpose and objects of the EEA but adopted precisely the response that the EEA seeks to prevent: a failure to recognise the seriousness of the conduct complained of; a lack of interest in resolving the issue in the manner required; a failure to consult and take the necessary steps to eliminate the conduct complained of; and a failure to do all that was reasonably practicable to ensure that its employee would not act in a manner contrary to the provisions of the EEA.

[64]   For all of these reasons, the appeal must fail. There is no reason in law or fairness as to why costs should not follow the result.  As the quantum of the damages as already been agreed upon between the parties, it is only proper that the amount be included in the order.