Liberty Group Limited v M (JA105/2015) [2017] ZALAC 19 (7 March 2017)

Principle:

The requirements for employer liability for sexual harassment to arise under s 60 of the EEA include the employer's failure (a) to consult all relevant parties, (b) to take the necessary steps to eliminate the conduct and (c) to take all reasonable and practical measures to ensure that employees did not act in contravention of the EEA.

Facts:

After more than 10 years employment, an employee resigned from her position as an insurance clerk. In her letter of resignation, she stated that her working environment had become intolerable "due to ongoing and continued sexual harassment" by her manager. Following her resignation the employee referred an unfair discrimination dispute to the CCMA which ruled that it lacked jurisdiction to determine the dispute at arbitrationThe employee referred the matter to the Labour Court for adjudication.

In her evidence, the employee testified that following the sexual harassment, she did not know whom to trust. She feared she may lose her job if she reported the matter, given that Mr M was not only her senior but responsible for appraising her performance.

Three weeks after the alleged 4 incidents of harassment, the employee reported the matter to her line manager, who referred her to the sexual harassment policy. He communicated the allegation to a human resources consultant the next day, who made an emailed request for a meeting with the employee but this meeting did not occur due to scheduling difficulties.The employee obtained the necessary forms needed to lodge a sexual harassment complaint but did not submit the complaint.The employee testified that she contacted the employee wellness call centre to ask for information regarding her submission of a sexual harassment complaint but was told to refer the matter to the CCMA. This was disputed.

When the employee resigned her team leader, Ms Nyathi contacted her. When the employee told Ms Nyathi about the sexual harassment, Ms Nyathi was sympathetic and asked her not to resign so that the employer could deal with the matter. The employee tore up her first letter of resignation. When Ms Nyathi offered to speak to Mr M, the employee declined the offer. In the following two-week period no steps were taken by the employer to investigate the sexual harassment complaint. The employeethen submitted a second resignation letter and a week later referred a dispute to the CCMA. Following her resignation, she did not assist the employer in its investigation of the matter as she stated that the employer had not co-operated with her initially, was doing "too little too late", she did not trust the appellant and she was "being overwhelmed" by the appellant. Although Mr M was initially suspended from work, his suspension was ultimately uplifted.

The Labour Court found that the employee had proved her sexual harassment by Mr M mainly because the employer put up no direct evidence to rebut the employee's version.The Court consequently found that: (1) The employer had failed to take reasonable steps in terms of Section 60 of the EEA to protect the employee upon becoming aware of the complaint at the earliest opportunity when the employee brought it to the attention of the employer; (2) The employer only took necessary steps after the employee's second resignation letter; (3)Accordingly, the employer failed to protect the employee as required in terms of section 60 of the EEA."The parties in due course agreed quantum in the amount of R250 000 and the employer was granted leave to appeal against the finding on the merits only.

The LAC dismissed the appeal and confirmed the findings of the Labour Court. Of significance is that the LAC noted: "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."

Extract from the judgment:

Savage AJA:

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

[32]   In treating harassment as a form of unfair discrimination in s 6(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.

[33]   Sexual harassment is defined in the Amended Code on the Handling of Sexual Harassment in the Workplace 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.'


[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, 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 Matambuyev MEC for Education and Others, 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 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 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) 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:

  1. The sexual harassment conduct complained of was committed by another employee.
  2. It was sexual harassment constituting unfair discrimination.
  3. The sexual harassment took place at the workplace.
  4. The alleged sexual harassment was immediately brought to the attention of the employer.
  5. The employer was aware of the incident of sexual harassment.
  6. 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.
  7. 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" 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. 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.

[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. 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

[48]   The appellant takes issue with the respondent's failure to report Mr Mosesi's conduct in the manner required by s 60(1), contending not only that she failed to report the matter in the manner required but also that, to the extent that she may be found to have reported the matter, she failed to do immediately.

[49]   The respondent testified that she reported her sexual harassment by her immediate manager to Mr Haines telephonically. There is no reason to reject the Labour Court's finding that the respondent informed Mr Haines that the perpetrator was her immediate manager. Mr Haines accepted in his evidence that he was informed in general terms by the respondent of a complaint of sexual harassment, that he referred her to the appellant's sexual harassment policy for her to determine whether the conduct she complained of constituted harassment and that, in spite of the limited information he received, he was able to report the issue in general terms to Ms Soller the following day. The effect of the report to Mr Haines, even in its general terms, was to place him in a position to understand that the respondent had a complaint of sexual harassment against another employee.

[50]   Little turns on the Labour Court's erroneous finding that this conversation occurred on 25 August 2009 or that the report was made at the latter end of a conversation in which the respondent also raised concerns as to her salary given that Mr Haines admits the conversation.

[51]   Although the appellant contends that the conduct was not reported immediately, as required by s 60(1), with a delay of some weeks having elapsed between the sexual harassment and the report to Mr Haines, I am satisfied that the requirement that conduct be reported "immediately" must be given a sensible meaning.This is done through considering the provision within its context and in a manner, which ensures an interpretation that does not lead to a glaring absurdity, even where the interpretation given may involve a departure from the plain meaning of the words, used.

[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.

[53]   A determination as to whether a report has been made in accordance with s 60(1) requires an assessment of the facts unique to each matter. I am satisfied that the respondent's report of the conduct, while not made immediately, was nevertheless made within sufficient time and that an unduly technical approach to the timing of the report is not warranted on the facts of this case. A glaring absurdity would arise, one which does not accord with the purpose of the EEA, were the report to be found to have failed to comply with s 60(1) simply by virtue of the limited delay which arose between the conduct complained of and the report to the employer.

[54]   It follows that the respondent's report to Mr Haines of her sexual harassment by her immediate manager constituted a report of the conduct in the manner required by s 60(1) of the EEA.

Appellant's response to report

[55]   Having found that a report was made, what is remarkable about Mr Haines' evidence is that he considered it to be for the respondent to determine whether the conduct fell within the ambit of sexual harassment as defined in the policy and lodge a formal complaint. The respondent's evidence that she found Mr Haines to be dismissive of her in their conversation is borne out by his response to the issue in referring her to the policy and leaving it to her to take further steps. In conceding that more could reasonably have been expected of Mr Haines in his response to the respondent, Mr Sujee's evidence for the appellant was correctly accepted by the Court a quo. The effect of the report to Mr Haines, even in its general terms, was to place him in a position to understand that the respondent had a complaint of sexual harassment against another employee. For a senior employee, employed with a large institutional employer, more could reasonably have been expected of Mr Haines, not only in his immediate response to the respondent but in ensuring that the matter was investigated appropriately.

[56]   While Mr Haines informed Ms Soller of the conversation with the respondent the following day, including that she had raised the issue of sexual harassment with him, it is remarkable that this spurred neither employee to ensure that they met with the respondent to understand or investigate the complaint. Ms Soller did no more than attempt to make contact (unsuccessfully) with the respondent via e-mail and telephone to request a meeting with her. The respondent was not visited at her workplace for further information to be obtained regarding the issue. The appellant's response was at best superficial.

[57]   Regarding the veracity of the respondent's call to its call centre, the Labour Court found that given the nature of the advice provided to the respondent, it was likely that a record was not kept of the call. I can take no issue with such conclusion. It is difficult to understand why the respondent, if the call were not made, would have limited a concocted version simply to that she was advised to approach the CCMA. While the existence of the call only further supports the respondent's case regarding the appellant's failure to act on a complaint received in accordance with s 60(2), even if regard were not had to the call, the appellant failed to comply with s 60(2) given the response of Mr Haines and Mr Soller to the complaint raised.

[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".

[60]   After Mr Haines and Ms Soller had been informed that the respondent had raised a sexual harassment complaint against her immediate manager, Mr Mosesi informed the respondent that he was aware that she had contacted human resources. The respondent's alarm at being told by her superior of her contact with human resources is understandable given the sensitivity of the report. The effect of informing Mr Mosesi of this communication was that the appellant failed to take the positive steps to protect the respondent in the manner contemplated by both its own policy and the EEA to ensure that Mr Mosesi "would not act in contravention of this Act".

[61]   The absence of any investigation into the issue until after the respondent had resigned was glaring. The focus of the attention of Ms Nyathi, the respondent's team leader, after the respondent's first resignation letter at the end of September 2009 was to seek her withdrawal of the resignation. Following that resignation having been withdrawn by the respondent, no investigation into the sexual harassment complaint ensued until after the respondent's second resignation letter dated 13 October 2009. Mr Mosesi was not suspended from work until 26 October 2009. It followed that no steps were taken by the appellant after the complaint was reported to ensure that the sexual harassment of the respondent did not continue.

[62]   It was contended for the appellant that it was difficult to imagine what other steps the appellant could be expected to have taken in advance to avoid a situation as the present, short of not employing Mr Mosesi. In approaching the matter on this basis, the appellant fails to have regard to its failure to adhere to its own sexual harassment policy in taking "appropriate action" when "complaints are identified and/or raised" or offering "appropriate support" on a confidential basis. While much emphasis is placed on the respondent's refusal to participate in the investigation launched subsequent to her second resignation and her lack of cooperation with disciplinary proceedings against Mr Mosesi thereafter, ultimately resulting in his suspension being uplifted, the evidence shows that the respondent no longer trusted that the appellant had or would take the matter up in the appropriate manner. If nothing more, her stance given the manner of her treatment by the appellant is understandable.

[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.

Order

[65]   In the result, the following order is made:

  1. The appeal is dismissed with costs.
  2. The appellant pays to the respondent the sum of R250 000 as damages within 10 days of the date of this judgment.