Context

One of the first issues referred to me as a private dispute resolver under the auspices of the Independent Mediation Service of South Africa in the early 90’s - before statutory labour conciliation and arbitration and the CCMA were even a twinkle in our first democratic Minister of Labour, Tito Mboweni’s, eye – was to chair an appeal from a middle-aged man who was aggrieved that he had received a final written warning after being found guilty in a disciplinary enquiry of sexually harassing a female co-worker. 

The facts were not novel: You know the story: man and woman co-workers flirting with each other in the office, sexual innuendo here and there, intimations that this could go somewhere.  Until one day, in a closed office, a consensual hug turns into something more when the man’s hands take on a life of their own.

He has gone beyond the woman’s comfort zone and she says: No! In this case, he stops immediately and apologises. His version was that he didn’t know that what he was doing was wrong. End of story.

I could empathise with both parties.  As a young, not unattractive, rookie journalist in the late 1960s – one of very few women in the newsroom of a major newspaper at the time – my older, male colleagues – highly experienced, hard-living, hard-working, hard-drinking famous journalists of the day - flirted with me all the time.  Told me how sexy I was – you know the story. I was not aggrieved. I lapped it up. Felt complimented and accepted.  If I had called them out on their behaviour, they would have been horrified.  I would have been marginalised.  They did not think they were doing anything wrong. I didn’t think they were doing anything wrong. Eventually what we now call sexual harassment stopped when I worked my way up the ladder to become a highly respected journalist, winning South Africa’s most prestigious journalism award before my 30th birthday.

So, I agreed with the appellant – I understood why he honestly believed that what he was doing was not wrong.  No rules regarding this type of behaviour were in place at the time.  I might have found him not guilty for these reasons, but he was only appealing against the sanction which I reduced to a written warning.

The issue of “Knowledge of the rule” arose for me again in 1996 during a sexual harassment session with newly appointed CCMA commissioners, which included a number of young men. At the end of the session, at question time, one of these young men raised their hand. 

“In our culture,” he said, “what you call sexual harassment is totally accepted by our women.  Why are you imposing these euro-centric, colonialist ideas on us? It’s racist”.

Within seconds, one of the women in the group raised her hand saying that, actually, they did not accept this kind of behaviour from men but were forced to say nothing because of their position in the patriarchal system into which they were born.

I tell these stories as a reminder of how far we have come when it comes to sexual harassment in the workplace. However, despite the fact that the definition of harassment in the Employment Equity Act (EEA), which came into force in 1998 recognises that an employee can be subjected to harassment for reasons other those related to sex, it was only in March this year, that a Code of Good Practice relating to other forms of harassment in the workplace came into force.  The new Code, entitled Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (the Code) not only replaces the old Code which dealt only with sexual harassment, but it also includes general harassment and bullying, and 'racial, ethnic and social origin' harassment.

The Code is very easy to understand so I don’t think it would serve any practical purpose for me to simply regurgitate the provisions of the Code.  Rather, I am taking a practical approach to highlight the elements of the Code which will ensure substantive fairness when employers seek to discipline employees for conduct or language that constitutes harassment.

Substantive fairness

The essential elements which have to be proved for conduct to constitute harassment, as described in the Code, are as follows.

The conduct must be:

• unwanted and impair dignity;
• such that:
  • it creates a hostile working environment for one or more employees; or
  • has the effect of inducing submission by actual or threatened adverse consequences; and
• related to one or more of the grounds of prohibited discrimination listed in section 6 of the EEA (race, gender, marital status, sexual orientation etc).

The conduct can include violence, physical abuse, psychological abuse, emotional abuse, sexual abuse, gender-based abuse or racial abuse, which may include the use of force or power, whether threatened or actual against another person, a group or a community.

Unwanted conduct

The conduct complained of may be a single event or a pattern of persistent conduct or, in particular bullying, in an escalating process in which the complainant “ends up in an inferior position and becomes the target of systematic negative social acts".  To prove that the conduct was unwanted, the employer must prove that:

• the complainant communicated to the harasser, either verbally or non-verbally, directly or indirectly, that the conduct of the harasser was unwelcome; and/or
• the harasser knew or should have known that the conduct was generally considered to be unacceptable; and
• although the primary focus is on the impact the harassment had on the complainant, the perception of the complainant was consistent with the “views of a reasonable person in the situation of the complainant consistent with societal values reflective of our constitutional ethos”.

Harassment is direct when it is aimed at the complainant and indirect when it has the effect of “undermining dignity or threatening safety".

The state of mind of the harasser is irrelevant. If the conduct was calculated or intended to offend the complainant, this will be regarded as an aggravating factor when it comes to sanction in disciplinary proceedings.

Hostile working environment

The essential element to prove that the conduct of the harasser led to a hostile working environment is whether the conduct had a negative impact on the complainant’s ability to work or on their personal well-being. 

Examples of harassment (other than sexual harassment)

Generally, harassment includes but is not limited to the following:

• Slandering or maligning an employee.
• Spreading rumours maliciously.
• Conduct which humiliates, insults or demeans an employee.
• Withholding work-related information or supplying incorrect information.
• Sabotaging or impeding the performance of work.
• Ostracising, boycotting or excluding an employee from work or work-related activities.
• Persecution such as threats, inducing fear and degradation.
• Intolerance of psychological, medical, disability or personal circumstances.
• Surveillance of an employee without their knowledge and with harmful intent.
• Use of disciplinary or administrative actions without objective cause, explanation or efforts to solve the problem.
• Demotion without justification.
• Abuse or selective use of disciplinary proceedings.
• Pressuring an employee to participate in illegal activities or not to exercise a right.
• Pressuring an employee to resign.

The harassment may be:

• vertical (as, for example, between someone in authority and a subordinate or horizon (as between employees in the same position or on the same level);
• passive-aggressive or covert (for example, negative gossip, negative joking at someone’s expense, sarcasm, condescending eye contact, facial expressions or gestures, mimicking to ridicule, deliberately causing embarrassment or insecurity, social exclusion etc);
• the result of mobbing where the harassment is conducted by a group of people targeted at one or more individuals;
• committed, assisted or aggravated in part or fully by the use of electronic equipment such as mobile phones, the internet, social media or email.

Bullying

Bullying, according to the Code, involves the abuse of coercive power by an individual or group of individuals in the workplace.  It may involve aggressive behaviour in which someone repeatedly causes another person injury or discomfort.  Bullying online is referred to as cyberbullying. Bullying may include threats, shaming, hostile teasing, insults, constant negative judgment, criticism, or racist, sexist, or LGBTQIA+phobic language. Bullying is usually psychological harassment causing emotional abuse.

Intimidation

This, according to the Code is intentional behaviour that would cause a person of “ordinary sensibilities” to fear injury or harm.

Racial, ethnic or social origin harassment

Racial harassment occurs when a person is subject to physical verbal or non-verbal conduct based on race which undermines their dignity or which creates an intimidating, hostile or humiliating working environment for an individual.  It involves racial innuendo, stereotyping or other types of conduct which is assumed to be offensive and unwanted to any individual who may be exposed to the language or conduct. Examples may include:

• abusive language and racist jokes;
• racially offensive written or visual material;
• racist name-calling or negative stereotyping;
• open hostility to people from a particular racial or ethnic group;
• subtle or blatant exclusion from workplace interaction, activities and other forms of marginalisation.

In addition to proving that the conduct was unwanted (note that explicit racial conduct is deemed to be unwanted) and that it and that it created an intimidating, hostile or humiliating working environment for an individual, an employer must prove the following to find an employee guilty of racial, ethnic or social origin harassment.

• Did the perpetrator speak the words or behave in the manner complained of towards the complainant?
• Was the conduct related to race, ethnic or social origin harassment or a characteristic associated or assumed to be associated with such a group?
• Was the language or conduct abusive, demeaning or humiliating?
• Did the language or conduct impair the dignity of the complainant?
• Was the language or conduct calculated to induce submission by actual or threatened adverse consequences?
• Was the language or conduct directed at a particular employee or employees?

For the purposes of sanction (although the Code does not specifically say that these elements relate to sanction but, as established by case law relative to misconduct generally, I believe they do), consideration must be given to:

• the extent and degree of impairment to the complainant’s dignity;
• the impact of the conduct.

Sexual Harassment

The new Code is essentially a duplication of the old 2005 Code relating to sexual harassment. As Professor Alan Rycroft points out in the Worklaw April 2022 newsletter, a new clause attempts to capture key court decisions relating to sexual harassment which have been handed down since the 2005 Code came into effect.  The key points captured in clause 5.3.1 are as follows.

Sexual harassment is direct or indirect, unwanted conduct of a sexual nature which:

• the perpetrator knows or ought to know is not welcome;
• makes the complainant feel uncomfortable or cause harm or inspire the reasonable belief that the complainant may be harmed;
• may interfere with the work of the complainant (although it may not necessarily do so);
• violates the rights of an employee; and
• constitutes a barrier to equality in the workplace.

Concluding remarks

I believe that absent our bill of rights relating to equality and discrimination, the legislation, codes of good conduct and the many court decisions upholding dismissals for sexual harassment and the awarding of damages, running into hundreds of thousands of rands, to victims of sexual harassment whose employers have done nothing about their complaints, nothing would have changed.

Today, people in the workplace, men and women, are wary of engaging in sexual banter not because, sadly, they believe it is wrong but rather because of the consequences if they do.

Now that employers and employers have been provided with clear guidelines on how other forms of harassment which persist in the workplace must be handled, including an injunction in the Code that employers adopt a zero-tolerance approach to all forms of harassment, one can only hope that they have the same effect.

 

SEXUAL AND RACIAL HARASSMENT AND BULLYING CASE LAW

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BULLYING

Autism Research and Education CC v Commission for Conciliation, Mediation and Arbitration and others [2020] 11 BLLR 1123 (LC)

The requirement that an employee must file a grievance before resigning and claiming constructive dismissal is not absolute.  Employees are not required to lodge a grievance where an employer had constantly bullied them. The Labour Court refused leave to appeal against its finding that the employees had been constructively dismissed because of intolerable bullying.

Simmadari v Absa Bank Ltd [2018] 7 BLLR 710 (LC)

The court found that an employee, who had been charged with harassing and bullying subordinates, calling them “monkeys”, threatening their jobs and giving them gifts of a salacious nature and who claimed she had been dismissed on the grounds of her race, had not been dismissed for anything other than misconduct.

HARASSMENT

Sexual Harassment

National Union of Metalworkers of South Africa and another v Passenger Rail Agency of South Africa [2022] 1 BLLR 90 (LC)

The court rejected the employee’s claim for damages against the employer in terms of Section 60 of the EEA which she failed to report for more than two years as the employer could not, in these circumstances, fulfil its statutory obligation to assist the employee.

The onus on an employer to prove that discrimination did not occur or that it was fair does not apply to damages claims against employers. See, too, Piliso v Old Mutual Life Assurance Co (SA) Ltd & others (2007) 28 ILJ 897 (LC)

Ehurhuleni Metropolitan Municipality v South African Local Government Bargaining Council and others [2022] ZALAC (27 January)

The dismissal of a municipal official who sexually harassed a candidate for a learner driver’s licence was found to be fair.

Adcock Ingram Healthcare (Pty) Ltd v General Industries Workers Union of South Africa obo Khumalo and others [2020] 2 BLLR 162 (LC)

The dismissal of a manager for sexual harassment based on unconvincing evidence from the complainant alone was found to be unfair when the cautionary rule was applied.

Gwe v De Lange and another [2020] 1 BLLR 92 (ECP)

The High Court decided against an employee who sued their employer for defamation after being suspended and transferred due to a complaint of sexual harassment against him by a colleague because the employer was exercising a right and duty in terms of labour laws.

Rustenburg Platinum Mines Limited v UASA obo Pietersen and Others (2018) 39 ILJ 1330 (LC)

The Labour Court criticised the arbitrator for concluding that the failure to report the incident timeously was an indication that the complainant had encouraged and 'inspired' the harasser to conclude that she was not averse to his conduct, and to accordingly keep alive his hopes that she would eventually agree to sleep with him. The LC summarised its views as follows: "Silence, no matter how prolonged it may be, as the Commissioner ought to have known, does not amount to consent. A 'docile' response to sustained sexual harassment cannot be equated with an invitation."

Liberty Group Ltd v MM [2017] 10 BLLR 991 (LAC)

Section 60(4) of the EEA, which requires employers to ensure that the offending employee “would not act in contravention of this Act” has been taken to mean that employers may be held liable only when they fail to prevent future acts of harassment. However, such a narrow interpretation is not consonant with the purpose of the EEA. The words “would not” in section 60(4) should be read as meaning “did not”. The court held that this requirement must be given a “sensible” meaning and that there must be an assessment of all the facts unique to each matter.

Campbell Scientific Africa (Pty) Ltd v Simmers and Others [2016] 1 BLLR 1 (LAC)  

The Labour Appeal Court decided that the age difference between the complainant and the alleged harasser was a material factor in assessing whether verbal conduct constituted sexual harassment.

Moatshe v Legend Golf and Safari Resort Operations (Pty) Ltd [2014] 12 BLLR 1213 (LC)  

The Labour Court found that the employer had acted reasonably in circumstances where the employee was raped twice, severely assaulted and injured by her supervisor. While the act constituting harassment amounted to discrimination “of the worst kind”, this did not mean that the employer was liable as employer because it had taken reasonable steps to prevent repetition.

Gaga v Anglo Platinum Ltd & others [2012] 3 BLLR 285 (LAC) 

The fact that the complainant had waited until her exit interview to raise the grievance did not exonerate the perpetrator’s misconduct.

SA Broadcasting Corporation Ltd v Grogan NO & another (2006) 27 ILJ 1519 (LC) 

The court established that even when the victim does not discourage the conduct, an employee is guilty of sexual harassment if he should have known it was improper.
Numsa on behalf of Prezens and Duferco Steel Processing (Pty) Ltd (2006) 27 ILJ 1282 (BCA)

The requirement that the conduct be of a sexual nature does not mean that there needed to have been sexual attraction. The conduct can be designed to belittle and humiliate.

MEDIA 24 Ltd and another v Grobler [2005] 7 BLLR 649 (SCA);

The court confirmed the employer’s liability on the basis that “an employer owes a common-law duty to its employees to take reasonable care for their safety” and that such duty must “in appropriate circumstances include a duty to protect them from psychological harm caused, for example, by sexual harassment by co-employees”. It held that the fact that the legislature has provided a statutory remedy for sexual harassment, does not exclude a delictual claim based on the same facts. In other words, a delictual claim for damages is not limited. An employer is at great risk if it is found to be vicariously liable for the conduct of one or more of its employees. See also PE v Ikwezi Municipality and another [2016] 7 BLLR 723 (ECG)

Ntsabo v Real Security CC [2004] 1 BLLR 58 (LC)

A supervisor’s conduct and the employer’s inaction constituted sexual harassment and unfair discrimination for the purposes of the Employment Equity Act.

Racial Harassment

Rustenburg Platinum Mine v SAEWA obo Bester and Others [2018] 8 BLLR 735 (CC)  

An employee pointing his finger and saying to another employee "remove that black man's vehicle" in the context of that situation, constituted racism that justified dismissal.

Duncanmec (Pty) Ltd v Gaylard NO and others [2018] 12 BLLR 1137 (CC)

Strikers singing a struggle song, the words of which were interpreted to say "climb on top of the roof and tell them that my mother is rejoicing when we hit the boer", did not, in the context of that case, constitute racism justifying dismissal.

Solidarity obo Barkhuizen v Laerskool Schweizer-Reneke and others [2019] 7 BLLR 725 (LC)

A primary school teacher was suspended after a photograph of a black child seated apart from white children was circulated on social media. However, the facts indicated that the children were subsequently fully integrated and the allegation of “racism” was unwarranted.

Anglo American Platinum Amandelbut Complex (Pty) Ltd v Pooe and others [2019] 6 BLLR 556 (LC)

The comment that “in South Africa people have rights, “unlike in Lesotho” did not amount to racism.

Legal Aid South Africa v Mayisela and Others [2019] 5 BLLR 421 (LAC)

Employees who allege tacit racism should do so only on the basis of persuasive objective information leading to a compelling and legitimate inference, and in accordance with grievance procedures established for that purpose (see, too, SACWU & Another v NCP Chlorchem (Pty) Ltd & others (2007) 28 ILJ 1308 (LC)). However, in VSB Construction t/a Techni-Civils CC v National Union of Mineworkers obo Mngqola and others [2021] 10 BLLR 1009 (LAC), the employee’s dismissal for allegedly falsely accusing CEO of racism was ruled substantively unfair because the respondent had “overreacted” and the employee’s observations were merely an expression of his feelings.

Biggar v City of Johannesburg, Emergency Management Services [2017] 8 BLLR 783 (LC)

Racial harassment by fellow employees which do not take place at work is included in prohibited discrimination in terms of section 6 of the EEA. The employer, in this case, was found vicariously liable for unfair discrimination of a black employee when the employer ignored a situation where he and his family had been subject to constant racist abuse by white colleagues and their family members in live-in quarters.