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[2017] ZALAC 19
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Liberty Group Limited v M (JA105/2015) [2017] ZALAC 19; (2017) 38 ILJ 1318 (LAC); [2017] 10 BLLR 991 (LAC) (7 March 2017)
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IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA 105/2015
In the matter between:
LIBERTY
GROUP LIMITED
Appellant
and
M.
M.
Respondent
Heard:
21 September 2016
Delivered:
07 March 2017
Summary: Claim of unfair
discrimination under s 60 of the Employment Equity Act 55 of 1998
(EEA) against employer arising from employee’s
sexual
harassment by manager. Labour Court found appellant liable under s 60
with sexual harassment proved. On appeal: employer
found to have
failed to consult all relevant parties and take the necessary steps
to eliminate the conduct under s 60(2). In addition,
employer failed
to do all that was reasonably practicable, as required by s 60(4), to
ensure no act in contravention of EEA occurred.
Appeal against
judgment of Labour Court dismissed with costs.
Coram: Waglay JP, Savage
et
Phatshoane AJJA
JUDGMENT
SAVAGE AJA
Introduction
[1]
This is an appeal, with the leave of the
Court
a quo
,
against the judgment of the Labour Court (Sono AJ) in which the
appellant, Liberty Group Limited, was found liable as an employer
under s60 of the Employment Equity Act 55 of 1998 (‘the EEA’)
for having failed to take reasonable steps to protect
the respondent,
Ms M. M., on it becoming aware of her sexual harassment at work by
her manager, Mr Andrew Mosesi.
Background
[2]
On 13 October 2009, the respondent, after
more than 10 years employment, resigned from her position as an
insurance clerk with the
appellant. In her letter of resignation, she
stated that her working environment had become intolerable “
due
to ongoing and continued sexual harassment
”
by her manager, Mr Mosesi and that:
‘…
I
reported the harassment to management and Liberty Life failed to
react thereon. However, I later discover that Andrew [Mosesi]
was
contacted and informed of the matter in my absence but nobody came
back to me to help me deal with the situation, or to resolve
this
issue.
’
[3]
The appellant’s sexual harassment
policy seeks to “
eliminate all
forms of sexual harassment in the workplace
”,
“
maintain a workplace free of
sexual harassment
” while being
committed to ensuring “
positive
steps to provide a working environment for its employees who are free
from all forms of sexual harassment
”.
Senior management are to be informed of “
offensive
behaviour in violation of this policy”
,
with “
appropriate action”
taken “
against employees who do
not comply with the policy
.” The
obligation to take appropriate action when “
complaints
are identified and/or raised
”
permits “
informal or formal
remedies”
and “
appropriate
support
” to be offered as
required. A positive duty is placed on line management and human
resources consultants to ensure that employees
receive support on a
confidential basis and are assisted in clarifying whether offending
behaviour constitutes sexual harassment.
This involves discussing
alternative resolutions and providing advice regardless of the course
of action that the employee chooses
to take.
[4]
Following her resignation, on 26 November
2009, the respondent referred an unfair discrimination dispute to the
Commission for Conciliation,
Mediation and Arbitration (the CCMA),
first to conciliation and thereafter arbitration. After the CCMA
ruled that it lacked jurisdiction
to determine the dispute at
arbitration, the respondent referred the matter to the Labour Court
for adjudication.
Labour Court
[5]
After disputes of fact became apparent from
the papers, the Labour Court referred the matter to oral evidence.
The respondent testified
that Mr Mosesi had sexually harassed her on
four occasions. She took the first incident up directly with him, on
the basis that
she took the view that “
he
was just being a man
” and
considered that incident resolved. However, in May 2009, Mr Mosesi
asked her to attend training, for which he asked
her to arrange
snacks. When she arrived at 17h00, she found that she was the only
staff member attending the training. Mr Mosesi
made unwarranted
comments to her, touched her body, massaged her shoulders and stood
too close to her. She asked him to stop but
he did not.
[6]
A third incident also occurred in May 2009.
Mr Mosesi again asked the respondent to attend training, assuring her
that she would
not be alone this time. When she arrived she found she
was again alone with him. At Mr Mosesi’s request she assisted
him
in carrying boxes containing office supplies back to his car.
While loading the boxes into his car Mr Mosesi inappropriately
touched
her body and rubbed his body against hers so that she could
feel he was aroused. She told him to stop but he pushed her against
a
pillar and forced his tongue into her mouth. The respondent testified
that she felt like she was being raped. She refused his
offer to take
her home and went to the office bathroom to wash her face and
mouth.
[7]
A further incident occurred when the
respondent was working late. Mr Mosesi arrived and sat next to her.
He placed his hand on her
leg, moving it steadily higher up her leg.
When she told him to stop he laughed. He then instructed her to call
him every afternoon
to give him feedback on branch activities,
although she was not the team leader, as he said she had potential
and that she was
the only person he trusted. The respondent’s
evidence was that she needed a salary increase to meet her financial
obligations,
that she was dissatisfied with what she was earning and
had discussed this with Mr Mosesi. However, following his sexual
harassment
of her, she did not know whom to trust. She feared she may
lose her job if she reported the matter, given that Mr Mosesi was not
only her senior but responsible for appraising her performance.
[8]
On 6 July 2009, she addressed a request for
a salary increase to the appellant’s divisional manager, Mr
Ebrahim Sujee. She
stated that she did not report her sexual
harassment to him as he was so “
high
up
”. On 28 July 2009, the
respondent wrote to Ms Elaine Soller, a human resources consultant
employed by the appellant, stating:
‘
I
have tried to call you a few times for your assistance and I have not
been successful am hoping you will get this email and hopefully
respond.
I
am caught between a rock and a hard place in my life at this point. I
cannot afford to work and live in Pretoria for the salary
I am
earning. I have tried to change my budget and work a few things out
of the budget now there is nothing left for me to take
out of it.
I
have sent a letter to Andrew and Sivenash for money and it was
declined
…’
.
[9]
In her evidence, the respondent stated that
she hoped her e-mail would get the attention of the appellant’s
human resources
department in order that she could then report Mr
Mosesi’s sexual harassment of her. On 31 July 2009, she asked
to meet with
the respondent and the respondent requested Ms Soller
via e-mail “…
to visit our
hub
”. On 3 August 2009, Ms Soller
proposed to do so during the week of 18
August 2009 but on 17 August 2009 Ms
Soller emailed the respondent –
‘…
to
confirm – we had initially agreed to meet this week, however I
have received feedback that you met with Andrew and your
concerns
were addressed. Do you still want to meet or is everything sorted
out?’
[10]
Given that she did not have a very good
relationship with her team leader, Ms Sylvia Nyathi, who did not
spend much time at the
branch, the respondent contacted her former
team leader, Ms Sandy Viljoen, who advised her to telephone Mr Nick
Haines. The respondent
then spoke to Mr Haines after having been told
that Ms Soller was not in. It was Mr Haines’ evidence that the
call took place
on 19 August 2009.
[11]
During the conversation with Mr Haines the
respondent discussed her salary and, in the latter part of the
discussion, told him that
her immediate manager was sexually
harassing her. Mr Haines told her to consult the appellant’s
sexual harassment policy
to determine whether the conduct amounted to
sexual harassment and if so, to determine what the requirements were
for lodging a
complaint. Mr Haines’s evidence was that the
respondent did not identify the person harassing her and that, while
a large
part of the phone call was about her salary, she said
something about harassment towards the latter part of the discussion.
The
respondent stated that she found his attitude to her during the
call to be dismissive.
[12]
Mr Haines informed Ms Soller of the call
the following day, since Ms Soller had been away from work the
previous day. Ms Soller
testified that she then attempted
unsuccessfully to contact the respondent telephonically and although
an emailed request for a
meeting was sent to the respondent, this
meeting did not occur due to scheduling difficulties.
[13]
The respondent obtained the necessary forms
needed to lodge a sexual harassment complaint but did not submit the
complaint. After
her call with Mr Haines, Mr Mosesi contacted the
respondent and told her that he was aware that she had been in
contact with human
resources. From this she deduced that Mr Haines
had informed Mr Mosesi of her discussion with Mr Haines, which she
assumed included
her report of sexual harassment.
[14]
The respondent testified that she contacted
the appellant’s 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. The appellant denied
that this call
occurred, on the basis that no call centre record of
the call existed.
[15]
The respondent resigned from her employment
on 28 September 2009 in a letter addressed to Mr Sivenash Naidoo. In
response, her team
leader, Ms Nyathi contacted her. When the
respondent told Ms Nyathi about the sexual harassment, Ms Nyathi was
sympathetic and
asked her not to resign so that the appellant could
deal with the matter. Ms Nyathi in evidence stated that she saw it as
her first
obligation to see to it that the respondent withdrew her
resignation. The respondent tore up her first letter of resignation.
When
Ms Nyathi offered to speak to Mr Mosesi, the respondent declined
the offer. In the following two-week period no steps were taken
by
the appellant to investigate the sexual harassment complaint.
[16]
On 13 October 2009, the respondent
submitted a second resignation letter to the appellant and a week
later referred a dispute to
the CCMA. Following her resignation, she
did not assist the appellant in its investigation of the matter as
she stated that the
appellant 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 Mosesi was initially suspended from work, his suspension
was ultimately uplifted.
[17]
During the course of vigorous and lengthy
cross-examination, it was put to the respondent by the appellant’s
counsel that
her claim was “
meritless
”,
that she had known as much all along, that she was only “
in
it for the money
[and had]
always
been in it for the money
” and
that she had “
tried to extort
money out of Liberty
” with the
hope that she “
would get some sort
of settlement and that the whole matter would go away
”.
The respondent denied this, stating that “…
from
the beginning I wanted justice. I still want justice today
”.
She persisted that she had been sexually harassed by Mr Mosesi and
that –
‘…
nobody
did anything about it. There is a letter that was written to settle
this matter. Yes there was because it had gone on long
enough
[and]
Liberty
was not willing to hear what was happening. Up until today Liberty is
still protecting themselves, because they would rather
not know the
truth but protect them having to pay something for a matter that
happened in that office
.’
[18]
The appellant took issue with the
respondent’s recall, after more than two years, of precise
dates and details related to
the harassment. This led the appellant’s
counsel put it to the respondent that she was “
incapable
of telling the same story
” and
that she had contradicted herself repeatedly, while being chided to
“(c)
ome on, tell us the truth
…”
She was told she was “
all over the
place as to what actually happened
”
and that “(e)
verything that you
have described today…in relation to what occurred between you
and Mr Mosesi was effectively consensual.
It was tolerable. It was
not unacceptable. Not so?
”
[19]
The Labour Court found that the respondent
had proved her sexual harassment by Mr Mosesi during 2009 and that
the only reasonable
inference was that either Ms Soller or Mr Haines
had been in touch with Mr Mosesi after the respondent had spoken to
Mr Haines.
Although the appellant disputed that sexual harassment had
occurred, the Court noted that Mr Sujee in his evidence for the
appellant
could not dispute that the respondent had been sexually
harassed and that the appellant put up no direct evidence to rebut
the
respondent’s version. As a result, the Court stated that:
‘…
it
is not clear what the denial is based on. It is one thing for the
[appellant]
to
allege that it is not vicariously liable for the conduct of Mosesi
but to deny the alleged conduct of Mosesi without him being
called to
testify, is rather
(sic)
taking
the matter too far.
Other
than that Mosesi is no longer employed by the
[appellant],
no
other explanation was proffered as to why he was not called to
testify
.’
[20]
Although the respondent had sought a salary
increase and had raised the issue with Mr Mosesi in a meeting with
him and in writing
in March 2009, the Labour Court found that this
evidence did not support a conclusion that the allegations of sexual
harassment
had been fabricated due to her financial situation but
that her financial situation had “
rendered
[her] v
ulnerable
to Mosesi’s manipulations by making promises of training to
[her]”.
[21]
Although inconsistencies were recognised in
the respondent’s evidence relating to the dates on which the
incidents took place
and her failure to mention in cross-examination
that Mr Mosesi had stuck his tongue in her mouth during one incident,
these were
found not “
so material
as to cast doubt on the credibility and reliability of the
[her]
testimony
”
with the core allegations of sexual harassment uncontroverted. The
Court found the respondent a reliable and credible witness
who “
broke
down several times during her testimony evincing the traumatic effect
of the harassment on her”
. There
was “
no reason to disbelieve
[her]
version. The fact that she was
oscillating about the dates of the incidents…is not sufficient
to impeach her credibility
and reliability.
”
Perhaps the Court should have added that the cross-examination to say
the least simply added to the harassment that the
respondent
suffered.
[22]
The Court found that three reports
regarding the respondent’s predicament had been made. Mr Nick
Haines “
because of his own
prejudices, opted simply to send
[the
respondent]
to go and study the policy
[when] …
he was not in a position
to assist
[her]”. Ms Elaine
Soller’s efforts to get hold of the respondent were found to be
insufficient. While there was no
record of the call to the
appellant’s employee wellness call centre, the respondent was
adamant that she had made the call.
The Court found that it was not
“
unlikely that the call was not
recorded given the advice that the
[respondent]
claims she was given
”.
[23]
It was found that the respondent’s
resignation was prompted by a call that she works at the appellant’s
Hatfield offices
where Mr Mosesi was based and that “(b)
eing
afraid to meet Mosesi or having to deal with him left
[her]
without any option but to tender
her resignation
”. She did this by
emailing Mr Naidoo, who in turn reported the matter to Mr Sujee.
[24]
The Court found that the appellant “
was
made aware of the sexual harassment before the employee resigned and
failed to take the necessary steps then
”;
and that it was only after Mr Sujee, who was recognised to have been
a candid and impartial witness who conceded that Mr
Haines had not
dealt with the matter appropriately, became involved that the matter
was appropriately dealt with. The Court consequently
found that -
‘
70.2
The Respondent had failed to take reasonable steps in
terms of Section 60 of the EEA to protect the Applicant
upon becoming
aware of the complaint at the earliest opportunity when the Applicant
brought it to the attention of the Respondent.
70.3
The Respondent only took necessary steps after the Applicant’s
second resignation letter.
70.4
Accordingly, the Respondent failed to protect the Applicant as
required in terms of section 60 of the
EEA.
”
[25]
The appellant sought that the Labour Court
impose a punitive cost order against the respondent on the basis that
her claim was “
frivolous and
vexatious …made without merit
”
no such order was made. However, having succeeded on the merits the
appellant was ordered to pay costs on the ordinary scale
with the
matter referred for a hearing on quantum. The parties in due course
agreed quantum in the amount of R250 000 and the appellant
was
granted leave to appeal against the finding on the merits only.
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 –
2.5.1
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;
2.5.2
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.
[27]
Extensive heads of argument spanning some
97 pages were filed on behalf of the appellant in this appeal. During
the course of argument,
it was contended that the Labour Court had
erred in finding the respondent to have been a credible and reliable
witness when her
evidence was unsatisfactory, contained
inconsistencies and inaccuracies and her behaviour was inconsistent
with that of a person
with a genuine complaint. Her evidence, it was
argued, displayed an “
inherent
lack of logic and probability
”
and “
hopelessly contradictory and
unreliable
”. It was submitted
that the Labour Court had been patently wrong in making findings
favourable to her credibility when the
discrepancies in her evidence
indicated that the respondent was a witness who was “
at
best psychologically disturbed and at worst, a pathological liar
”.
Issue was also taken with the respondent’s “
pre-occupation
with and concern…for a salary increase
[as]
an abiding theme in this matter”
.
[28]
The appellant contended that the respondent
had failed to bring the conduct to the attention of the appellant in
the manner required,
but that the appellant’s employees had
nevertheless responded appropriately to the allegations once raised:
Mr Haines referred
the respondent to the applicable policy and
reported the matter to Ms Soller who sought a meeting with the
respondent; Ms Nyathi
complied with “
her
primary and exclusive duty
” to
persuade the respondent not to resign; and the respondent’s
evidence that she expected Ms Nyathi to take the matter
further did
not accord with her refusal to let Ms Nyathi contact Mr Mosesi.
Consequently, it was submitted that the Labour Court
had erred in
finding the appellant liable under the EEA.
[29]
Issue
was taken in argument with the “
highhanded
and uncooperative
”
way the respondent treated the appellant in refusing to assist in the
investigation into the matter after her second resignation
letter,
contending that her approach was inconsistent with the provisions of
the EEA and the 2005 Amended Code on the Handling
of Sexual
Harassment Cases in the Workplace (the Amended Code).
[1]
[30]
Counsel for the respondent disputed that
the Labour Court had erred in finding for the respondent when the
appellant had led no
evidence to refute the evidence of sexual
harassment. It was submitted that when the respondent raised the
matter with Mr Haines
he failed to deal with the issue appropriately,
but only referred the respondent to the appellant’s policy and
informed Ms
Soller of the conversation he had had with the
respondent. Ms Soller had made cursory attempts to contact the
respondent and the
call centre had failed to assist her
appropriately. The respondent’s alarm at learning from Mr
Mosesi that he had been informed
that she had contacted human
resources was, it was submitted, understandable. It followed that
once the complaint had been brought
to the appellant’s
attention, the relevant parties were not consulted, the necessary
steps to eliminate the conduct were
not taken and the appellant did
not do what was required of it under the EEA.
Evaluation
[31]
The
EEA requires every employer to promote equal opportunity in the
workplace
[2]
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
harassment.
[3]
[32]
In
treating harassment as a form of unfair discrimination in s 6(3),
[4]
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.
[5]
[33]
Sexual
harassment is defined in the Amended Code on the Handling of Sexual
Harassment in the Workplace
[6]
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
.’
[7]
[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,
[8]
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,
[9]
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
[10]
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
[11]
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
)
[12]
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:
(i)
The sexual harassment conduct complained of
was committed by another employee.
(ii)
It was sexual harassment constituting
unfair discrimination.
(iii)
The sexual harassment took place at the
workplace.
(iv)
The alleged sexual harassment was
immediately brought to the attention of the employer.
(v)
The employer was aware of the incident of
sexual harassment.
(vi)
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.
(vii)
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”
[13]
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.
[14]
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.
[15]
[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.
[16]
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]
v
ulnerable
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.
[17]
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.
___________________
Savage AJA
Waglay JP and Phatshoane AJA agree.
APPEARANCES:
FOR APPELLANT:
Mr P Buirski
Instructed by Hlatswayo Du Plessis Van
der Merwe Nkaiseng Attorneys
FOR RESPONDENT:
Mr
W A Boonzaier
T C Hitge
Incorporated
[1]
Issued by the
Minister of Labour in terms of s54(1)(b) of the EEA.
Para
1 of the 1998 Code; para 4 of the Amended Code.
[2]
Section 5
requires that every employer “…
must
take steps to promote equal opportunity in the workplace by
eliminating unfair discrimination in any employment policy or
practice
”.
[3]
S 6(1) read with
s 6(3).
[4]
Section
6(3) reads: ‘H
arassment
of an employee is a form of unfair discrimination which is
prohibited on any one, or a combination of grounds of unfair
discrimination listed in subsection (1)
’.
Section 6(1) has expanded upon the grounds of unfair discrimination
provided in s 9(3) of the Constitution to include
family
responsibility, HIV status and political opinion.
[5]
See Cooper, C
“Harassment on the Basis of Sex and Gender: A Form of Unfair
Discrimination” 2002 ILJ (23) at 1.
[6]
Amended Code on
the Handling of Sexual Harassment Cases in the Workplace (Issued by
the Minister of Labour in terms of
s 54(1)(b)
of the
Employment
Equity Act 55 of 1998
under
GN 1357 of 2005) at para 4.
[7]
At
para 4.
[8]
Piliso v Old
Mutual Life Assurance Co (SA) Ltd and Others
(2007) 28 ILJ 897 (LC) at para 15;
Ehlers
v Bohler Uddeholm Africa (Pty) Ltd
(2010)
31 ILJ 2383 (LC) at para 49.
[9]
Matambuye v
MEC for Education and Others
[2015] ZALCJHB 455 at para 22.
[10]
[2007] ZALC 90
;
[2008]
5 BLLR 428
(LC); (2008) 29
ILJ 1196 (LC) at paras 42–43.
[11]
[2011]
6 BLLR 577
(LC).
[12]
(2009) 30 ILJ
1322 (LC) at para 46.
[13]
R
v
Abel
1948 (1) SA 654
(AD) at 659; see too
Mutual
Holdings (Bermuda) Limited and Others v Diane Hendricks and Others
[2013] UKPC 13
at para 28.
[14]
Santam Bpk v
Biddulph
2004 (5) SA 586
(A) at 589F-G with reference to
Protea
Assurance Co Ltd v Casey
1970 (2) SA 643
(A) at 648D-E and
Munster
Estates (Pty) Ltd v Killarney Hills (Pty) Ltd
1979 (1) SA 621
(A) at 623H-624A
[15]
R v Dhlumayo
and Another
1948
(2) SA 677
(A) at 705 per Davis AJA;
Protea
Assurance Co Ltd v Casey
1970 2 SA 643 (A) at 648D–E.
[16]
See
SFW
Group Ltd and Another v Martell et Cie and Others
2003 (1) SA 11
(SCA) at para 5.
[17]
Natal Joint
Municipal Pension Fund v Endumeni Municipality
[2012] 2 All SA 262
(SCA);
2012 (4) SA 593
(SCA) at para 25.