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Can employers be held liable for failing to timeously investigate sexual harassment claims

Authors: Prudence Moselakgomo – Candidate Attorney

Supervised by: Lavery Modise – Special Counsel


In ZG / Massmart Wholesale (Pty) Ltd [2024] 3 BALR 350 (CCMA), the Commission for Conciliation, Mediation and Arbitration (“CCMA”) considered whether employers can be held liable for failing to comply with their sexual harassment policies by failing to expeditiously investigate complaints lodged by employees regarding allegations of improper conduct and failing to consult complainants.



This matter highlights the statutory duty imposed on employers to adequately and timeously investigate claims of sexual harassment by employees.


The dispute in this matter arose when the Respondent, Massmart Wholesale Pty Ltd, delayed, for a period of eight months, to institute disciplinary proceedings against an employee of Massmart (“the alleged perpetrator”) following a sexual harassment claim made by a senior employee against the alleged perpetrator. The senior employee was, for the purposes of the arbitration, identified as ZG. The senior employee reported two incidents of sexual harassment against the alleged perpetrator. The first incident occurred when the alleged perpetrator touched the senior employee’s shoulder and the second incident occurred when he pinched her waist and paid her undue attention. The senior employee formally reported the incidents to the employer’s Ethics Department in April 2022.


The employer initiated an investigation after the senior employee had lodged a complaint. Eight months later and on 15 December 2022, the alleged perpetrator was issued with a notice to attend a disciplinary hearing and thereafter suspended. Following the disciplinary hearing, the alleged perpetrator was advised that the chairperson of the disciplinary hearing found that the reported incidents were insufficient to constitute sexual harassment for purposes of the Employment Equity Act (EEA).


Dissatisfied with the outcome, the senior employee referred an unfair discrimination dispute to the CCMA in terms of section 6(3) of the EEA. Section 5 of the EEA places an obligation on an employer to take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice. By referring her dispute in terms of section 6 of the EEA, the senior employee posited that the grounds for unfair discrimination in her matter were sex, sexual orientation and gender. In terms of section 6(3) of the EEA, the harassment of an employee is a form of unfair discrimination and is prohibited on any one or a combination of grounds of unfair discrimination listed in section 6(1). This, amongst other things, includes direct or indirect discrimination based on gender, sex and sexual orientation.


The CCMA accordingly had to consider whether Massmart had unfairly discriminated against the senior employee based on sex, sexual orientation and gender in breach of the EEA; whether Massmart was liable in terms of section 60 of the EEA; and whether the senior employee was entitled to an order for the payment of compensation and/or damages as provided for by the EEA. Given that the allegation was based on a listed ground, section 11 of the EEA was applicable, and in the circumstances, Massmart had to prove, on a balance of probabilities, that the alleged discrimination did not take place or that it was rational, not unfair or otherwise justifiable.


In determining whether the Massmart discriminated against the senior employee, the CCMA considered the definition of sexual harassment as contained in clause 5 of the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace. Clause 5 of the Code of Good Practice, defines sexual harassment as:


“5.2.5 The unwanted conduct must be of a sexual nature and includes physical, verbal, or non-verbal conduct, whether expressed directly or indirectly. Conduct amounting to sexual harassment may include –

5.2.5.1 physical conduct of a sexual nature ranging from touching, kissing, to sexual assault and rape.

5.2.5.3 following, watching, pursuing, or accosting of an  employee;” 


The CCMA found that the alleged perpetrator  made physical contact with the senior employee’s body, persisted in harassing her by pinching her waist and was quite familiar with her routine, specifically as to when she would come into the office. In the circumstances, the CCMA found that the alleged perpetrator had sexually harassed the senior employee.


In its consideration of Massmart’s liability, the CCMA first considered section 60 of the EEA, which places an obligation on employers to consult all relevant parties and take all necessary steps to eliminate sexual harassment and comply with the provisions of the EEA. Massmart contended that it had taken all reasonable steps to prevent the sexual harassment complained of after it was brought to its attention as it had consulted with all the relevant parties, formulated an investigative report and instructed an Advocate from the Johannesburg Bar to chair the disciplinary hearing. Despite the investigative report having been finalised on 7 July 2022, the alleged perpetrator was only disciplined four months later. The CCMA accordingly found that Massmart had not dealt with the senior employee’s allegation of sexual harassment expeditiously. In consideration of the above, the Commissioner found that the Respondent had failed in its duty to consult all relevant parties, to take the necessary steps to eliminate the alleged conduct and comply with the provisions of the EEA.


The CCMA award is notable for two reasons: First it reminds employers of the importance of complying with their own internal policies around sexual harassment and harassment in the workplace in general. Given that Massmart’s own Group Discrimination & Harassment Policy had required that proper and thorough consultation be undertaken, it failed to do so, and in the circumstances, Massmart also failed in its duty to eliminate unfair discrimination and sexual harassment in its workplace. Second, the award also reminds employers of the importance of their statutory duty to eliminate unfair discrimination in the workplace and that their failure to do so may result in them being held in contravention of the EEA. Given that the unfair discrimination was based on a listed ground, the Respondent was required to ensure that the misconduct was addressed and resolved expeditiously.


 

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