SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
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IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J1033/24
In the matter between:
EASYBRANCH (PTY) LTD Appellant
and
SIBIYA, Z N.O. First Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Second Respondent
M[…], J[…] Third Respondent
Heard: 10 December 2025
Delivered: 02 June 2026
JUDGMENT
SASS AJ
Introduction
[1] This application concerns an appeal in terms of section 10(8) of the Employment
Equity Act No. 55 of 1998 (the EEA) against the Arbitration Award dated 12 October
2025 made by the F irst Respondent under the auspices of the Second Respondent
(the Arbitration Award).
[2] The First Respondent ultimately made the follow ing findings in the Arbitration Award,
that: (i) the Third Respondent was subjected to unfair discrimination on the grounds of
sexual harassment; (ii) the Appellant was found to be vi cariously liable in terms of
section 60(4) of the E EA; (iii) the Appellant pay s the Third Respondent the sum of
R100 000.00 (one hundred thousand rand) ; and (iv) the Appellant is to provide proper
and thorough training on harassment to all its employees.
Grounds of appeal
[3] The Third Respondent submitted in his heads of argument that the Appellant does not
appeal the sexual harassment finding (or the vicarious liability finding for that matter)
and that it only appeals the amount of R100 000.00 awarded to the Third Respondent
(the Relief).
[4] This submission is not correct. It is apparent from the Appellant’s notice of appeal and
heads of argument that it has appealed against each of the following findings by the
First Respondent, that:
4.1 the Third Respondent was subjected to unfair discrimination on the grounds of
sexual harassment;
4.2 the Appellant is vicariously liable for the abovementioned sexual harassment in
terms of section 60 of the EEA; and
4.3 the Appellant pays the Third Respondent the sum of R100 000.00 as a result of
such vicarious liability.
[5] Consequentially, the Appellant’s appeal has three legs. I address each of these below
in turn having regard to the grounds of appeal raised by the Appellant in respect of
each, after setting out the legal principles which are applicable to an appeal of this
nature and providing a synopsis of the material background facts /evidence which
served before the First Respondent.
The applicable legal principles
Appeal versus review
[6] This is an appeal against the Arbitration Award and not a review. It is trite that appeals
and reviews are determined by different tests applicable to each type of application.
[7] In essence, an appeal concerns the substantive correctness of the Arbitration Award
(i.e., the findings made by the First Respondent therein) whereas a review would
concern whether the Arbitration Award is one that no reasonable commissioner could
reach.
[8] The Appellant’s grounds of appeal relate to both findings of fact made by the First
Respondent as well findings of law made by the First Respondent. The aim of the
Appellant’s appeal is to set aside the Arbitration Award.
[9] It is trite that a Court exercising appeal jurisdiction may confirm, amend or set aside
the decision that is the subject of the appeal and render any decision that the
circumstances may require.
[10] Insofar as an appeal calls for an interference with the exercise of any discretionary
power, as this one does in relation to the amount of compensation which was
awarded, it is trite that a Court exercising appeal jurisdiction is not entitled to interfere
unless that power was not properly exercised and that any discretionary power is
regarded as having not been exercised judicially if the decision-maker: (i) applied it
capriciously; (ii) was moved by a wrong principle of law or an incorrect appreciation of
the facts; (iii) did not bring their unbiased judgment to bear on the issues; and (iv) did
not act for substantial reasons1.
Characterisation of sexual harassment
[11] Section 3 of the EEA states:
‘This Act must be interpreted-
(a) in compliance with the Constitution;
1 Trencon Construction (Pty) Ltd v Industrial Corporation of South Africa Ltd and Another 2015 (10)
BCLR 1199 (CC) (26 June 2015) at paras 82-92
(b) so as to give effect to its purpose;
(c) taking into account any relevant code of good practice issued in terms of this Act
or any other employment law; and
(d) in compliance with the international law obligations of the Republic, in particular
those contained in the International Labour Organisation Convention (111)
concerning Discrimination in Respect of Employment and Occupation.’
[12] The Code of Good Practice on the Prevention and Elimination of Harassment in the
Workplace
2 (the Code) was i ssued in terms of the EEA (effective 18 March 2022) and
must therefore be taken into account when the EEA is interpreted.
[13] The Code recognises various forms of harassment, including sexual harassment, that
may amount to unfair discrimination.
[14] Section 4 of the Code provides a definition of harassment and reads as follows:
4. WHAT IS HARASSMENT?
4.1 The term "harassment" is not defined in the EEA. Harassment is generally understood to
be –
4.1.1 unwanted conduct, which impairs dignity;
4.1.2 which creates a hostile or intimidating work environment for one or more employees
or is calculated to, or has the effect of, inducing submission by actual or threatened
adverse consequences; and
4.1.3 is related to one or more grounds in respect of which discrimination is prohibited in
terms of section 6(1) of the EEA.
4.2 Harassment includes violence, physical abuse, psychological abuse, emotional
abuse, sexual abuse, gender -based abuse and racial abuse. It includes the use of
physical force or power, whether threatened or actual, against another person or
against a group or community.
4.3 Harassment against all employees in the workplace is an abuse of power. This Code
recognises that harassment particularly affects employees in vulnerable employment
who, while covered by labour legislation, may have in practice poor access to the
2 GN 1890 in GG 46056 of 18 March 2022 issued in terms of Section 54(1)(b) of the Employment Equity
exercise of labour rights such as freedom of association, collective bargaining, decent
work, protection from discriminatory practices and access to dispute resolution
forums.
Moreover, the intersection of factors such as race, religion, gender, or disability
increases the risk of harassment.
4.4 Unwanted conduct
4.4.1 The criterion that harassment involves unwanted conduct distinguishes acts of
harassment from acceptable conduct in the workplace. Two primary issues arise in
evaluating whether the harasser/perpetrator knew or should have known that the
conduct was unwanted.
4.4.2 Firstly, the issue arises as to whether the complainant communicated to the
harasser/perpetrator that the conduct was unwelcome. Secondly, this may have
occurred verbally or nonverbally and may have been communicated directly or
indirectly to the harasser/perpetrator.
4.4.3 If there is no such communication, it will still be necessary to examine whether the
conduct was of such a nature that the harasser/perpetrator knew or should have
known that conduct of the type engaged in, is generally considered to be
unacceptable.
4.4.4 While violent conduct may amount to harassment, harassment may occur as a
result of non -violent conduct. Accordingly, an act or threat of violence is not an
essential element of harassment. Likewise, certain acts of harassment may
involve a criminal offence and the employer may be under a duty to report certain
acts of harassment to the police.
4.4.5 Whether or not conduct constitutes harassment, should be assessed on an
objective basis from the perspective of the employee who alleges harassment.
The primary focus of the inquiry as to whether there has been harassment, is on
the impact of the conduct on the employee. However, there may be circumstances
in which the perceptions of the person harassed are not consistent with the views
of a "reasonable person" in the situation of the complainant. In such
circumstances, a person or employer charged with har assment, may seek to
circumstances, a person or employer charged with har assment, may seek to
establish that the complainant's perceptions are not consistent with societal values
reflective of our constitutional ethos.
4.5 Repeated or serious conduct
4.5.1 Harassment may occur as a result of a pattern of persistent conduct or a single
instance or event. In the case of a single instance, harassment will be present if the
conduct is of a serious nature. Whether a single instance of conduct will be sufficiently
serious to constitute harassment must be determined in light of the event that is the
subject of the complaint.
4.5.2 Harassment, in particular bullying, may be an escalating process in the course of
employment in which the complainant ends up in an inferior position and becomes the
target of systematic negative social acts.
4.5.3 It is not necessary to establish the intention or state of mind of the
harasser/perpetrator in order to prove harassment for the purposes of the EEA. The
fact that the conduct was calculated or intended to offend the complainant(s) may be
an aggravating factor relevant to determining a remedy for the complainant. The
intention of a harasser/perpetrator may also be relevant to disciplinary proceedings.
4.5.4 The following factors may be relevant to the issue of whether harassment has
occurred –
4.5.4.1 the context of the harassment;
4.5.4.2 the circumstances of the complainant and the impact that the conduct has had
on an employee; and
4.5.4.3 the respective positions of the harasser/perpetrator and complainant.
4.6 Hostile work environment
4.6.1 A hostile work environment will be present where conduct related to a prohibited
ground impacts on the dignity of one or more employees. This will be present if the
conduct has a negative impact on the employee's ability to work and/ or on their
personal well-being. This may be the result of conduct of persons in authority such
as managers and supervisors or the conduct of other employees.
4.6.2 A hostile environment may also be present where an employer should anticipate
that employees will be subject to abusive conduct related to a prohibited ground by
members of the public, customers or clients and fails to take reasonable steps to
protect employees from such conduct.
4.6.3 In order to establish the existence of a hostile work environment, it is not
4.6.3 In order to establish the existence of a hostile work environment, it is not
necessary to show that the complainants have not received a particular benefit.
4.6.4 Harassment is considered to be direct where it is aimed at the complainant for
example, violent conduct or abusive language which is directed at the
complainant. Harassment may occur indirectly where the conduct, even though
not directed at the complainant, has the effect of undermining dignity or
threatening safety.
4.7 Types of harassment
4.7.1 Harassment may be the result of physical, verbal, or psychological conduct.
4.7.2 Physical harassment includes physical attacks, simulated or threatened violence,
or gestures (such as raising a fist as if to strike a person or throwing objects near a
person).
4.7.3 Verbal bullying may include threats, shaming, hostile teasing. insults, constant
negative judgment, and criticism, or racist. sexist, or LGBTQIA+ phobic language.
4.7.4 Psychological harassment in the workplace may be associated with emotional
abuse and involves behaviour that has serious negative psychological
consequences for the complainant(s) such as is often the case with verbal abuse,
bullying and mobbing.
4.7.5 A wide range of conduct in the workplace may constitute harassment. Examples of
harassment include, but are not limited to:
4.7.5.1 slandering or maligning an employee or spreading rumours maliciously;
4.7.5.2 conduct which humiliates, insults or demeans an employee;
4.7.5.3 withholding work-related information or supplying incorrect information;
4.7.5.4 sabotaging or impeding the performance of work;
4.7.5.5 ostracising, boycotting, or excluding the employee from work or work -related
activities;
4.7.5.6 persecution such as threats, and the inspiration of fear and degradation;
4.7.5.7 intolerance of psychological, medical, disability or personal circumstances;
4.7.5.8 surveillance of an employee without their knowledge and with harmful intent;
4.7.5.9 use of disciplinary or administrative sanctions without objective cause,
explanation, or efforts to problem solving;
4.7.5.10 demotion without justification;
4.7.5.11 abuse, or selective use of, disciplinary proceedings;
4.7.5.12 pressuring an employee to engage in illegal activities or not to exercise legal
rights; or
4.7.5.13 pressuring an employee to resign.
4.7.6 In practice, a number of different terms are used to describe conduct in the
workplace that amounts to harassment. While these terms are not used in
legislation, they provide a useful basis for understanding and preventing
harassment in the workplace.
4.7.7 Bullying - where harassment involves the abuse of coercive power by an individual
or group of individuals in the workplace. Intimidation - this is intentional behaviour
that would cause a person of ordinary sensibilities to fear injury or harm.
Workplace bullying may involve aggressive behaviour in which someone
repeatedly causes another person injury or discomfort.
4.7.8 Harassment may be referred to as being "vertical" or "horizontal". Vertical
harassment (also known as "tangible or material") involves the use of formal power
(i.e. title, position, or supervisory control) or material leverage (i.e. financial,
informational, resource or legal) to intimidate, threaten, harass. or harm an
employee or to dominate and control the complainant. Vertical harassment refers
to harassment between the employer/manager and employee. Horizontal
harassment refers to harassment between em ployees in the same position or on
the same level.
4.7.9 Passive-aggressive or covert harassment may include negative gossip, negative
joking at someone's expense, sarcasm. condescending eye contact, facial
expression, or gestures, mimicking to ridicule, deliberately causing embarrassment
and insecurity, invisible treatment, marginalisation, social exclusion, professional
isolation, and deliberately sabotaging someone's dignity, well -being, happiness,
success, and career performance.
4.7.10 Mobbing is a form of harassment by a group of people targeted at one or more
individuals.
4.7.11 Online harassment is harassment which is committed, assisted. or aggravated in
part or fully, by the use of information and communications technology such as
mobile phones, smart phones, the Internet, social media platforms or email.
mobile phones, smart phones, the Internet, social media platforms or email.
Bullying when conducted online is referred to as cyber-bullying.
4.8 Prohibited grounds
4.8.1 Harassment of an employee is prohibited in terms of section 6(1) of the EEA, if the
harassment is related to one or more prohibited grounds.
4.8.2 It may also be possible for a person who has been harassed to establish that the
conduct was a result of an arbitrary ground, as contemplated by section 6(1) of the
EEA.
[15] Section 5 of the Code specifically relates to sexual harassment and reads as follows:
5. SEXUAL HARASSMENT
5.1 Sexual harassment of an employee is a form of unfair discrimination and is prohibited on
the grounds of sex, gender, or sexual orientation. Same sex harassment can amount to
discrimination on the basis of sex, gender, sexual orientation and gender -based
harassment.
5.2 Factors to establish sexual harassment
Unwanted conduct
5.2.1 There are different ways in which an employee may indicate that sexual conduct is
unwanted, including non- verbal conduct such as walking away or not responding to
the perpetrator.
5.2.2 Previous consensual participation in sexual conduct does not necessarily mean that
the conduct continues to be acceptable to the employee.
5.2.3 Where a complainant has difficulty indicating to the perpetrator that the conduct is
unwanted, such complainant may seek the assistance and intervention of another
person such as a cо- worker, superior, counsellor, human resource official, family
member or friend.
5.2.4 The fact that the complainant does not indicate that the conduct is unwanted does not
entail that there has not been sexual harassment, if the conduct is such that the
harasser/perpetrator ought to have known it could be regarded as unwanted.
Nature and extent of the conduct
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;
5.2.5.2 strip searching, including by a person of the same sex in the presence of the
opposite sex, or with appropriate privacy;
5.2.5.3 following, watching, pursuing or accosting of an employee;
5.2.5.4 sexual attention, advances or proposals; or other behaviour, whether explicit or
implicit, including suggestions, messages, advances, attention or proposals of a
implicit, including suggestions, messages, advances, attention or proposals of a
sexual nature;
5.2.5.5 implied or express threats of reprisal or actual reprisal to comply with sexually
oriented requests, advances, attention or proposals;
5.2.5.6 verbal conduct such as innuendos, suggestions. hints, sexual advances,
comments with sexual overtones, sex -related jokes or insults, graphic comments
about a person's body, inappropriate enquiries about a person's sex life, whistling
of a sexual nature and the sending by electronic means or otherwise of sexually
explicit text; or
5.2.5.7 non-verbal conduct such as unwelcome gestures, indecent exposure and the
display or sending by electronic means or otherwise of sexually explicit pictures or
objects.
5.2.6 Sexual harassment may include, but is not limited to. victimization, quid pro quo
harassment, sexual favouritism and creating or permitting a hostile working
environment (i.e. conduct that creates an intimidating, hostile or humiliating working
environment for the recipient).
5.2.6.1 Victimization occurs where an employee is victimized or intimidated for failing to
submit to sexual advances, attention, or proposals or for complaining about
gender-insensitive conduct.
5.2.6.2 Quid pro quo harassment occurs where a person such as an owner, employer,
supervisor, member of management or co -employee, influences or attempts to
influence an employee's employment circumstances (for example engagement,
promotion, training, discipline, dismissal, salary increments or other benefits) by
coercing or attempting to coerce an employee to surrender to sexual advances.
5.2.6.3 Sexual favouritism is a form of quid pro quo harassment, which occurs where a
person in authority in the workplace seeks to utilise this power to reward those
who respond to his or her sexual advances.
5.2.7 A single incident of unwelcome sexual conduct may constitute sexual harassment.
Impact of the conduct
5.2.8 The conduct should constitute an impairment of the employee's dignity, taking into
account:
5.2.8.1 the circumstances of the employee; and
account:
5.2.8.1 the circumstances of the employee; and
5.2.8.2 the respective positions of the employee and the perpetrator in the workplace.
5.3 Test for Sexual Harassment
5.3.1 Sexual harassment is unwelcome conduct of a sexual nature. whether direet or
indirect, that the perpetrator knows or ought to know is not welcome. Sexual
harassment may be offensive to the complainant, make the complainant feel
uncomfortable or cause harm or inspire the reasonable belief that the complainant
may be harmed. Sexual harassment may interfere with the work of the complainant
although it need not necessarily do so. Sexual harassment violates the rights of an
employee and constitutes a barrier to equality in the workplace.
5.3.2 The test for establishing whether there has been sexual harassment takes into
account the following factors:
5.3.2.1 whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual
orientation;
5.3.2.2 whether the sexual conduct was unwanted or unacceptable;
5.3.2.3 the nature and extent of the sexual conduct; and
5.3.2.4 the impact of the sexual conduct on the employee.
[16] In terms of the EEA read with the Code, sexual harassment of an employee is a form
of unfair discrimination and is prohibited.
Vicarious liability in terms of section 60 of the EEA
[17] Section 60 of the EEA states:
‘Liability of Employers
60(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.
60(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.
60(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.
60(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.'
Relevant background facts/evidence
Common cause facts/evidence
[18] On or about 10 July 2024, Angela Evertse-Brown (Ms Evertse -Brown) made a joke
about the size of the Third Respondent's genitals in front of a number of other
employees of the Appellant, all of whom were female employees (the other
employees).
[19] Whilst she and other employees were busy cleaning a stationary cupboard, she came
across fingerettes. She called the Third Respondent over to take some of the
fingerettes.
[20] When he came over, she jokingly said that the fingerettes were as big as the Third
Respondent’s “mthondo” (i.e., his penis) and gave the fingerettes to hi m. All the
employees in attendance laughed.
[21] At that time, Ms Evertse -Brown was the Appellant’s warehouse manager and she
supervised the Third Respondent (employed by the Appellant as a warehouse
attendant).
[22] The joke was an isolated and once off event. The parties were also in agreement that
the joke may be described in a variety of ways, namely - untoward, unfortunate, crude
and of a sexual nature.
[23] Later, on the same day (10 July 2025), the Third Respondent expressed his
dissatisfaction directly to Ms Evertse -Brown about what she had said. Ms Evertse -
Brown immediately and without reservation apologised (which apology she repeated
on more than one occasion subsequently).
[24] The Third Respondent was not at work on the next day (on or about 11 July 2024) .
When Ms Evertse-Brown called him to ascertain why he was not at work, he informed
her that he was dealing with what she had said to him the previous day (i.e., the joke
that she had made).
[25] The Appellant convened a grievance meeting presided over by an independent
chairperson to try and resolve the matter between the Third Respondent and Ms
Evertse-Brown, which the Appellant dealt with as a grievance (i.e., something that the
Third Respondent was dissatisfied about).
[26] During the grievance meeting, Ms Evertse -Brown: (i) apologised for making the joke;
(ii) acknowledged that she overstepped the mark and behaved inappropriately as a
manager; and (iii) undertook not to repeat this conduct. There was no indication that
Ms Evertse-Brown’s apology at the grievance meeting as well as on or about 10 and/or
11 July 2024, was not bona fide and sincere.
[27] The grievance meeting chairperson made the following three recommendations (as set
out in his ‘Recommendation’ document dated 23 July 2024, which forms part of the
Record of the Arbitration Proceedings (at pages 79 to 81) –
5.1 The chairperson found that the grievant accepted the terms of the
resolution of the grievance and as such the chairperson found the
grievance resolved subject to the agreed way forward;
5.2 The chairperson also noted potential misconduct committed by the
respondent and grievant and recommends that the Company sets up
a general meeting and / or message to all employees regarding
appropriate office behaviour and Company policies and procedures;
and
5.3 The chairperson also recommends that the Company sets in place
an unbiased forum and procedure where employees can submit
grievances without the influence of management and these
grievances get properly investigated with appropriate actions taken.
[28] The chairperson’s Recommendation document also stated the following in its final
paragraph – “The grievant is further advised that he may refer a dispute to the CCMA
within ninety (90) days”.
[29] Notwithstanding the chairperson’s Recommendation dated 23 July 2024 and any
conduct on the part of the Third Respondent pursuant thereto, the Third Respondent
conduct on the part of the Third Respondent pursuant thereto, the Third Respondent
referred a dispute to the CCMA on or about 5 August 2024 (the CCMA dispute).
[30] During the relevant conciliation proceedings, the true nature of the dispute between
the Appellant and the Third Respondent was identified, being an alleged unfair
discrimination dispute on the ground of sexual harassment. The CCMA dispute
proceeded on that basis and culminated in the Arbitration Award.
Disputed facts/evidence
Was the joke degrading
[31] Whilst t he parties were in agreement that the joke may be described in a variety of
ways, namely - untoward, unfortunate, crude and of a sexual nature, the Third
Respondent further contended that the joke was also degrading. I could not find any
evidence of this being common cause though.
[32] The joke, however, appears to be prima facie degrading because it was made in the
presence of other staff members (all female staff), related to the Third Respondent’s
penis and the size thereof, and Ms Evertse-Brown and the other staff members
laughed at the Third Respondent.
Any prejudice / adverse impact suffered by the Third Respondent as a result of the incident
[33] The Appellant contended that the Third Respondent appears to have given no
indication during his evidence at the arbitration proceedings of any prejudice / adverse
impact he may have suffered as a result of the incident.
[34] However, the Third Respondent clearly did not take kindly to the joke seeing that:
34.1 he expressed his dissatisfaction directly to Ms Evertse -Brown on the day that it
happened;
34.2 he was not at work the next day because of the joke;
34.3 he continued to convey his dissatisfaction about the joke on and after 12 July 2024;
and
34.4 he contended that he felt humiliated by the joke.
[35] The remark reduced the Third Respondent’s dignity as an adult and made him look
like he was undignified, particularly because all those who heard the remarks were
laughing at him. These remarks were describing his private parts in front of all who
were present, all of whom were females.
Was the matter resolved at the grievance meeting
[36] The Appellant contended that the matter (i.e., the grievance) was resolved in the
grievance meeting, as the Third Respondent: (i) accepted Ms Evertse -Brown’s
apology; and (ii) did not appear to suggest an alternative basis upon which his
complaint could or should have been resolved.
[37] In relation to the chairperson’s recommendations, the Third Respondent agreed with
the Appellant’s propositions put to him during the arbitration proceedings that the
Appellant had given effect to the chairman’s three recommendations.
[38] However, it is apparent from what was put to the Third Respondent in this regard
during the arbitration proceedings and his subsequent responses as reflected in the
transcript of the arbitration proceedings (Record: page 190, line 11 to page 195, line
19) that the Third Respondent had not agreed that the matter/grievance was resolved
if the Appellant gave effect to the three recommendations.
[39] According to the Third Respondent, the three recommendations was the Appellant’s
proposals on the matter/grievance could be resolved and the chairperson gave effect
to that even though the Third Respondent indicated that during the grievance meeting
he had come up with his own ‘issue’ (or way to address the matter/grievance) that Ms
Evertse-Brown be dealt with according to the Appellant’s disciplinary policy.
[40] It appears that the Third Respondent wanted the Appel lant to take disciplinary action
against Ms Evertse-Brown and that the matter/grievance would be resolved in that
way. When asked why the chairperson’s Recommendation document makes no
mention of this, the Third Respondent stated that the chairperson compiled the
document and it was up to him what was stated therein.
[41] It is apparent to me from this that the Third Respondent was dissatisfied with how the
Appellant dealt with his matter/grievance and with the outcome of the grievance
meeting (i.e., the three recommendations as a resolution).
meeting (i.e., the three recommendations as a resolution).
[42] This subsequent dissatisfaction is foreshadowed by the chairperson indicating in his
Recommendation that the Third Respondent is further advised that he may refer a
dispute to the CCMA within ninety (90) days. This would be an odd statement to make
if the recommendations had been agreed to by the Third Respondent as the way in
which the matter/grievance was resolved.
[43] The referral of the CCMA dispute on or about 5 August 2024, less than two weeks
after the grievance meeting, further fortifies my view that in the Third Respondent’s
assessment, the matter (i.e., the grievance) was not resolved by the grievance
meeting.
[44] In paragraphs 45 to 108 below, I set out the respective submissions of the Appellant
and the Third Respondent in respect of each leg of the appeal.
First leg of the appeal – Whether or not the Third Respondent was subjected to unfair
discrimination on the grounds of sexual harassment
Appellant’s submissions – first leg of the appeal
[45] The Code describes 'unwanted’ and 'unwelcome' as synonyms. The Court in Amathole
District Municipality v Commission for Conciliation, Mediation and Arbitration and
Others3 dealt with clause 4 of the Code and said that:
'The test as to whether or not the conduct is unwelcome is objective. If the conduct
is not unwelcome it cannot be sexual harassment.
[46] I n Bandat v De Kock and Another
4 the Court held:
central to the existence of sexual harassment is conduct that must be
'unwelcome'. If the conduct is not unwelcome, it cannot be sexual harassment. The
determination of whether conduct is 'unwelcome' is an objective one, because
conduct that may be subjectively unwelcome to one person may not be unwelcome
to another. ’
[47] As to what may be considered to be 'unwanted, this is also specifically dealt with in the
Code, in particular in clauses 5.2.1 to 5. 2.4, where it is stipulated that there are
different ways in which an employee may indicate that sexual conduct is unwelcome,
including non-verbal conduct such as walking away or not responding to the
perpetrator. Further, previous consensual participation in sexual conduct does not
necessarily mean that the conduct continues to be welcome. Next, where a
complainant has difficulty indicating to the perpetrator that the conduct is unwelcome,
such complainant may seek the assistance and intervention of another person such as
such complainant may seek the assistance and intervention of another person such as
3 (2023) 44 ILJ 109 LAC at para 56.
4 (2015) 36 Il-J 979 (LC) at para 72.
a co-worker, superior, counsellor, human resource official, family member or friend.
And finally, even if the complaint does not indicate the conduct is unwanted, it does not
entail that there has been no sexual harassment, if the perpetrator ought to have
known that it could be regarded as unwanted.
[48] Applying all of the aforesaid provisions of the Code, a distinct structure for establishing
whether sexual harassment exists unfolds.
48.1 First, it must be objectively considered if the conduct is considered to be unwanted.
48.1.1 The proper point of departure is establishing whether the perpetrator of the
conduct is told that it is unwanted .
5 This conveying to the perpetrator that the
conduct is unwanted is not limited to specific verbal articulation made directly to
the perpetrator, but could include the complainant pursuing a complaint or
grievance to the employer's management or third parties about the conduct. 67
Further, and even if no such complaint or grievance is raised, the conduct may
still be considered to be sexual harassment, provided a proper explanation is
provided by the complainant for not raising the complaint earlier"
48.1.2 The nature of the behaviour may also be such that the perpetrator should be
able to reasonably assess for himself or herself that it would be unwanted,
considering the reaction from the complainant, which should prompt the
perpetrator of his or her own accord to not repeat it again. If the perpetrator then
persists with the behaviour, it could then constitute sexual harassment, even in
the absence of a specific complaint.
48.1.3 The complainant could also indicate to the perpetrator that the conduct is
unwanted by way of non-verbal reactions. Examples of these reactions are
where the complainant turns away or walks away, physically obstructs the
approach of the perpetrator or pushes the perpetrator away, deliberately avoids
or obstructs contact or interaction with the perpetrator, or engages third parties to
or obstructs contact or interaction with the perpetrator, or engages third parties to
'run interference' between the perpetrator and the complainant"
5 See clause 5.2 of the Code.
6 Bandat (supra) at para 74.
7 University of Venda (supra) at para 66; Makoti v Jesuit Refügee Service SA (2012) 33 ILJ 1706
(LC) at para 44.
Gaga v Anglo Platinum Ltd and Others (2012) 33 ILJ 329 (LAC) at para 41 ; Mokoena and Another
v Garden Art Ltd and Another (2008) 29 ILJ 1196 (LC) at para 47.
48.1.4 The actual dynamic and nature of the relationship between the perpetrator and
the complainant, is an important consideration in assessing whether conduct by
the perpetrator could be seen to be unwanted. 46 This dynamic must not only be
considered within the context of the employment relationship, but also at a
personal level. It may well be that this dynamic justifies and reasonably explains
a situation where there is no complaint about the conduct, despite such conduct
being, on face value, conduct worthy of complaint. In simple terms, was there in
existence, what the Court in Campbell Scientific Africa (Pty) Ltd v Simmers and
Others
47 called a substantial 'power differential', which made exploitation by way
of sexual harassment possible"
48.2 Second, and once it is determined that the conduct is unwanted, it must be next
decided whether the conduct is of the kind that could be seen to be sexual
harassment (i.e., the nature and context of the conduct).
48.2.1 Clauses 5. 2.5 and 5.2.6 of the Code provide the necessary guidance in this
regard.
48.2.2 In this context, the unwanted conduct must be of a sexual nature, which can take
the form of physical, verbal or non- verbal conduct, whether expressed directly or
indirectly.
49 Applicable in casu would be clause 5.2.5.6, which provides that
verbal conduct in the form of sex related jokes or insults could be seen to be
sexual harassment.
48.3 Third, it would also have to be considered what the impact of this conduct was on
the Third Respondent.
48.3.1 Clause 5.2.8.1 provides that the conduct should constitute an impairment of the
employee's dignity, taking into account: (i) the circumstances of the employee;
and (ii) the respective positions of the employee and perpetrator in the
workplace.
48.3.2 In this context, an important consideration is whether a hostile working
environment was created.
[49] Whilst it is true that where it comes to the sanction to be meted out to perpetrators of
[49] Whilst it is true that where it comes to the sanction to be meted out to perpetrators of
sexual harassment, as a general principle no quarter should be given [as the Court
said in Campbell Scientific Africa (Pty) Ltd v Simmers and Others
8 - . the sanction
imposed serves to send out an unequivocal message that employees who perpetrate
8 (2016) 37 ILJ 116 (LAC) at para 35
sexual harassment do so at their peril and should more often than not expect to face
the harshest penalty.' ], care should be taken that employers do not adopt the kind of
approach tantamount to overreaction where it comes to any possible sexual
harassment transgressions.
49.1 It should be remembered that the real and objective facts relating to harassment
must always be established by the employer, and that mere allegations, feelings
and opinions of people should not suffice.
49.2 One must also always bear in mind that an alleged perpetrator of sexual
harassment is still entitled to be fairly treated.
49.3 An over -zealous pursuit of any conduct that may remotely be seen to be sexual
harassment defeats the very objective of fair and even-h anded discipline in the
workplace
9. It could also place an undue strain on the employment relationship, not
only between employer and employee, but amongst co-employees.
[50] T he Appellant conceded that the first element of finding that sexual harassment may
exist, was present. The Appellant made this concession in the context of and with
reference to the facts in casu, that: (i) it can be said that the joke made by Evertse-
Brown towards the T hird Respondent was unwanted, or as the Code also calls it,
'unacceptable'; (ii) the Third Respondent’s reaction to the joke certainly speaks to it
being unwanted / unacceptable to him ; and (ii) the joke is the kind of joke that could,
objectively considered, lead to a conclusion that it would be unwanted to a male
recipient such as the Third Respondent.
[51] Notwithstanding this concession, the Appellant contended that the other
requirements/elements of finding that sexual harassment may exist, was not present
for the following reasons:
51.1 First, the joke by Ms Evertse -Brown was one single incident, that never happened
before and never happened again.
51.1.1 Although it is true that a single incident can constitute sexual harassment, the
51.1.1 Although it is true that a single incident can constitute sexual harassment, the
fact that there is only a single incident, considering the particular conduct in a
9 Compare Duncanmec (Pty) Ltd v Gaylard N.O. and Others (2018) 39 ILJ 2633 (CC) at para 48,
where the Court held, with regard to racism, which falls within the same heinous category of
misconduct as sexual harassment, that: ‘There is no principle in our law that requires dismissal to
follow automatically in the case of racism. What is required is that arbitrators and courts should deal
with racism firmly and yet treat the perpetrator fairly….’
particular case, may still be an important consideration in establishing that sexual
harassment does not exist.
51.1.2 For example, in Mokoena and Another v Garden Art Ltd and Another 10, the Court
dealt with the issue of a once off incident of sexual harassment which was not
repeated, and held:
'It seems to me that where the employer was aware of the sexual
harassment and it was brought to its immediate attention and he failed to
take steps to eliminate it and a further act of sexual harassment took place,
the employer cannot escape liability in terms of s 60 of the EEA Where
there is one incident of sexual harassment, which is brought to the
attention of the employer immediately after the incident, an employer will
not be held liable in terms of s 60 of the EEA The aggrieved employee may
then have to consider a different basis to hold the employer liable either in
terms of common law etc. I do not know how an employer would be able to
take reasonable steps to ensure that the employee would not act in
contravention of the EEA in the second example that I have given ’
51.2 Second, and in casu, there was simply no evidence nor indication that Ms Evertse-
Brown had a propensity towards such kind of conduct or that the T hird Respondent
had experienced anything similar in the past.
51.3 Third, the joke had a particular context, even though it was inappropriate. At the
time of the event, the T hird Respondent did nothing to indicate his dissatisfaction
and even laughed at the joke along with the others.
51.4 Fourth, there is no indication that Ms Evertse-Brown acted in malice or had some
unacceptable or hostile intention towards the Third Respondent.
[52] The joke was an inappropriate single workplace incident, which is not the kind of
incident that can serve to establish sexual harassment, and the First Respondent had
no regard to any of these considerations and effectively stopped the enquiry at the
point of deciding the conduct was unwanted to the T hird Respondent – which was
point of deciding the conduct was unwanted to the T hird Respondent – which was
materially an error.
[53] In addition, the nature of the joke cannot be ignored.
10 (2008) 29 ILJ 1196 (LC) at para 42
53.1 It is not lewd or sexually provocative, nor was it uttered in a sexual context. It was
simply a statement which compared the size of a finger head to the third
respondent's penis.
53.2 It is clearly intended, even on face value consideration thereof as something in jest
and is not sexual in nature.
53.3 In short, it is not sexual, nor sexually charged. In fact, Ms Evertse-Brown presented
undisputed testimony that she never intended the joke to be insulting towards the
third respondent.
[54] Another critical issue to consider is that the Third Respondent did not think to
immediately raise a grievance with the Appellant’s Human Resources department or
with Ms Evertse-Brown’s superior.
54.1 Instead, he considered it appropriate to rather inform her directly that he felt insulted
by what she said, and himself suggested that they needed to talk about it.
54.2 This is hardly the reaction of a person who feels so insulted and aggrieved to the
extent that a harassment case based on discrimination can be inferred. Then and
added to that, Ms Evertse -Brown immediately answers, unreservedly apologised,
acknowledged her wrongdoing and stated that she never intended to insult the
Third Respondent.
54.3 The Third Respondent does not reply to contradict this, which would have been
expected if he believed that the situation was not remediable by way of the apology
offered by Ms Evertse-Brown.
54.4 And finally, the T hird Respondent, despite being compelled to do so under his
contract of employment, never actually files a formal grievance.
[55] All of this was completely ignored by the First Respondent.
[56] One final consideration is that the Third Respondent never pointed to any prejudice or
adverse consequences / impact he suffered as a result of the joke.
11
56.1 He never indicated that it was impossible for him to continue to work with Ms
Evertse-Brown. There is not even a suggestion of a hostile working environment
being created, and his actual work was not impacted at all.
being created, and his actual work was not impacted at all.
11 Compare Bandat supra at para 84
56.2 Added to this, the T hird Respondent never testified that his fellow employees or
managers felt differently or somehow less towards him as a result of this.
56.3 The Third Respondent's only complaint, in the face of being prompted to explain
what his actual prejudice was, was to say that that as far as he was concern ed, Ms
Evertse-Brown overstepped the mark.
56.4 Whilst that may be true, it is entirely insufficient to establish he kind of prejudice that
could justifiably lead to a conclusion that sexual harassment, as contemplated by
the Code, exists.
56.5 In short, and on the facts, the joke made simply did not have had any adverse
impact on the Third Respondent.
Third Respondent’s submissions – first leg of the appeal
[57] An act of sexual harassment is demeaning to the person w ho is the victim of such
undignified act. The recipient of this act or behaviour is left undignified by the
perpetrator. The victim is stripped of his humanity and integrity. It is worse when this
type of behaviour is meted out in front of others.
[58] This kind of behaviour takes away the victim’s self-respect. It is worse when it is said in
front of others who find it funny without thinking about the victim’s feelings. This type of
behaviour violates the recipient’s right to integrity of the body and personality. Acts of
sexual harassment whether committed through acts or through words are degrading to
a person who is the target of these acts.
[59] It is for these reasons that the legislature has put measures in place to curb this type of
behaviour. The legislature had insight into how this behaviour can affect an individual.
Hence the legislature put preventative measures in place to curb or even prevent such
behaviour from taking place in the workplace, through the EEA (which was
promulgated for these reasons).
Second leg of the appeal – Whether or not the Appellant is vicariously liable for the
abovementioned sexual harassment in terms of section 60 of the EEA
abovementioned sexual harassment in terms of section 60 of the EEA
Appellant’s submissions – second leg of the appeal
Requirements for vicarious liability
[60] In applying the provisions of section 60 of the EEA, the Court in Potgieter v National
Commissioner of the SA Police Service and Another12 had the following to say:
'An employer will be held liable if it is shown in terms of s 60 of the EEA, 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 necessary steps
to eliminate the conduct or 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.'
[61] In AK v Right to Care NPC
13, the Court succinctly summarized the enquiry as follows:
'Notably, s 60 creates a statutory vicarious liability for employers for conduct of an
employee, while at work, that contravenes any provision o f the EEA. Therefore, the
issues for determination are three. First, whether the alleged sexual harassment
had been immediately reported to the respondent. Second, upon being notified of
the discriminatory conduct, the next enquiry turns on whether the respondent took
necessary steps to eliminate the alleged discriminatory conduct in consultation with
the relevant parties. Third, to escape vicarious liability, the respondent must show
12 (2009) 30 ILJ 1322 (LC) at para 36. This dictum was relied on in Liberty Group Ltd v M (2017) 38
ILJ 1318 (LAC) at para 38
13 (2023) 44 ILJ 2200 (LC) at para 29
that it did all reasonably possible to create an environment that is free from sexual
harassment.'
[62] In Moatshe v Legend Golf and Safari Resort Operations (Pty) Ltd 14, the Court held as
follows:
'Unpacking the provisions of s 60, and in order for an applicant to succeed with a
compensation and/or damages claim against his or her employer in terms of s
50(2)(a) and (b) of the EEA, such applicant has the evidentiary burden to show the
existence of the following:
29.1 It must be shown that discriminatory conduct as contemplated by chapter Il of
the EEA exists.
29.2 This conduct must have been committed by an employee of an employer,
towards another employee of the same employer.
29.3 This conduct must have been immediately brought to the attention of the
employer.
29.4 Despite this conduct having been brought to the attention of the employer, the
employer must have failed to consult all the parties and then have failed to take
necessary steps to eliminate and/or remedy the conduct complained of.
29.5 If applicable, the employer had not taken all reasonably practicable steps
beforehand to ensure that its employees would not commit such kind of conduct.'
Requirements of section 60(1) of the EEA have not been satisfied – no immediate reporting
to the employer
[63] Whilst it can be accepted that at least, the T hird Respondent immediately complained
about his alleged sexual harassment to the perpetrator herself. It must however be
said, as a matter of common sense and logic, that complaining to the perpetrator is not
reporting the incident to the employer. In fact, there is no evidence of the T hird
Respondent actually having reported the matter to the Appellant's responsible
management, by way of the grievance procedure or othe rwise. This is especially
important, considering the T hird Respondent’s contractual obligation to follow the
grievance process if he is dissatisfied about anything in the workplace. It appears from
grievance process if he is dissatisfied about anything in the workplace. It appears from
the Third Respondent's own version that the grievance meeting was convened
14 (2015) 36 ILJ 1111 (LC) at para 29
because he informed the Appellant’s Human Resources department that he was
referring the matter to the CCMA, and not because he lodged a formal complaint on
the basis of reporting the matter to management and wanting management to deal
with it.
[64] As held in National Union of Metalworkers of SA and Another v Passenger Rail
Agency of SA58: 'As I see it, to my mind the reporting must be to an employer through
the mechanism in its adopted policy. One thinks of a situation where an employee
simply confides in another employee, as Limo did to Connie and Le Roux. In such a
situation, it cannot, in my view, be said that the alleged conduct was brought to the
attention of an employer. It must be remembered that the bringing to the attention of
an employer serves a statutory purpose. That purpose is to enable an employer to
eliminate the alleged conduct. ’
[65] Consequently, it can be said that the requirement of 'reporting' his alleged sexual
harassment to the Appellant as his employer was not satisfied. Thus, the claim should
fail on the basis that section 60(1) has not been complied with.
Compliance with section 60(2) of the EEA – the employer consulted all relevant parties and
took the necessary steps to eliminate the alleged conduct and comply with the EEA
[66] The claim must also fail on the basis of the application of section 60(2). It was common
cause that immediately following the event on 10 July 2024, the Appellant was at least
aware of the event. After the Appellant became aware of the incident, it did the
following about it: (i) f irstly, and applying the T hird Respondent's own version, there
was a meeting convened with the Appellant’s Human Resources department to
discuss the matter (thus consulting the Third Respondent about the incident), where,
according to the Third Respondent, the matter could not be resolved, and he said he
would refer it to the CCMA ; (ii) s econdly, and in response to this, the Appellant then
would refer it to the CCMA ; (ii) s econdly, and in response to this, the Appellant then
convened a grievance meeting before an independent chairperson, specifically as
contemplated by the grievance procedure in the IR/HR Policy Manual, which is a
process specifically designed to deal with such complaints. There is no suggestion that
a proper and fair grievance hearing was not conducted. T he Third Respondent and Ms
Evertse-Brown were present at the grievance meeting, and the matter was actually
mediated by the chairperson. In fact, the evidence shows that the grievance
chairperson dealt with the complaint in a conscientious, fair and proper manner, and a
proper consultation took place; (iii) t hirdly, considering the nature of the complaint, on
the undisputed facts, the three grounds applied by the ch airperson in resolving the
matter was justified, and reasonable; (iv) f ourthly, there is no suggestion nor evidence
that the Appellant could and should have done anything else; (v) fifthly, actually and
properly considered, the evidence shows that the grievance meeting resolved the
complaint and the T hird Respondent accepted Ms Evertse-Brown's apology; and (vi)
sixthly, the grievance chairperson recommended that the A ppellant train its employees
on the application of the grievance procedure so that they understood their rights , and
on the undisputed evidence, this was also done.
[67] Consequently, it is difficult to understand what more the Appellant could have done.
The First Respondent's reasoning appears to be based on his own personal views that
the matter should have been differently dealt with and resolved, and that Ms Evertse -
Brown needed to be disciplined. This approach is unfounded, and completely in error.
The enquiry is not whether the Appellant could have acted differently. The enquiry is if
the Appellant acted reasonably.
[68] In Mokoena and Another v Garden Art Ltd and Another15, the Court stated that caution
must be taken not to adopt an armchair critic approach, but an objective assessment
must be made of all of the steps taken by the respondent as a whole, to ascertain if
these steps were reasonable to the extent of avoiding liability accruing to the
respondent in terms of section 60 of the EEA.
[69] T he Appellant clearly did so, especially considering there was no suggestion by the
Third Respondent himself as to what the Appellant could have done differently. The
Appellant immediately dealt with the complaint, even in the absence of a proper
grievance being lodged and resolved it in a manner that was actually palatable to all
parties. The First Respondent's approach was entirely unfounded and a misdirection.
[70] In Amathole District Municipality supra, the Court held as follows, which can equally
apply in casu:
16
apply in casu:
16
'Moreover, the appellant took steps immediately after the report of the grievance
hearing was received. Notwithstanding negative findings of the grievance by the
tribunal, it was nevertheless recommended that she be relocated to keep the
employee away from the alleged perpetrator. There was even an offer to attend to
her stress problems. These are the steps envisaged in s 60 of the Act. Ms Van
Staden, for the employee. could not suggest any other steps which could and
should have been taken by the employer. Thus, even if the employee had proved
15 (2008) 29 ILJ 1196 (LC) at para 47
16 Also compare Moatshe (supra) at para 34
that she had been sexually harassed by Mr Fredericks, there was no evidentiary
basis to conclude that the appellant was liable in terms of s 60 of the Act to
compensate the employee
[71] In the context of an employee that perpetrated an act of sexual harassment not being
dismissed by an employer, and it being contended that this rendered the employer
liable in terms of section 60(4), the Court in Right to Care supra had the following to
say
17:
'I don't agree with the submission by the applicant's counsel that such a sanction is
contrary to the zero-tolerance stance against sexual harassment adopted by the
respondent. Ordinarily, the appropriateness of the sanction is informed by the
grossness of the transgression and progressive discipline tenet, I accept Mr N's
evidence that Mr Molele's perverted conduct was swiftly weeded out as soon as it
was brought to the attention of the respondent in accordance with the sexual
harassment policy ’
[72] In the context of the F irst Respondent's intimation that Ms Evertse-Brown should have
been disciplined and perhaps dismissed, this conclusion is inappropriate and wrong.
Compliance with section 60(4) of the EEA need not be established
[73] Once it is established that the requirements of section 60(1) have not been satisfied
and / or section 60(2) has been complied with, that must be the end of the matter. It is
not necessary for the Appellant to also establish compliance with section 60(4).
[74] This is evident from the following reasoning in Shoprite Checkers (Pty) Ltd v JL and
Others
18: Section 60 should therefore be interpreted as meaning that the employer
becomes liable in terms of section 60(3) if one of its employees contravenes a
provision of the EEA, while at work, in respect of another employee, and, despite its
immediate reporting, the employer fails to take the necessary steps to eliminate the
conduct. It is only upon this failure that the conduct of the primary perpetrator is
conduct. It is only upon this failure that the conduct of the primary perpetrator is
assigned to the employer. However, notwithstanding the employer failing to act as
contemplated in section 60(2) of the EEA section 60(4) provides another "escape
route" for the employer if it can show that "it did all that was reasonably practicable to
ensure that the employee would not act in contravention of' the EEA. Put differently,
17 Para 48
18 (2022) 43 ILJ 903 (LC) at para 70. See also para 71, where the Court added: ‘….the failure of an
employer to take all reasonable practicable proactive steps to ensure employees do not contravene
the EEA, is not a separate basis for holding it liable for sexual harassment or other acts of unfair
discrimination, but if the employer has done so it can raise this as a defense…..’
section 60(4) will therefore only become a point of discussion if the employer has failed
to meet the requirements of section 60(3), and section 60(4) is not an additional
requirement that must be met before the employer can escape liability.’
[75] The issue of the application of section 60(4) is where the F irst Respondent finally exits
the rails. Sh e continued to consider, as a separate requirement, that section 60(4)
must also be proven, and that the Appellant took no further steps to ensure that the
harassment does not happen again in the future. Considering that the Appellant
complied with section 60(2), this entire consideration is irrelevant.
[76] It can perhaps just be emphasised in this context that the chairperson in the grievance
hearing recommended training on the application of the grievance procedure, as the
proper means to deal with such complaints, which training in fact happened.
Suspension and removal from the workplace are not automatic
[77] In the judgment of Potgieter supra, and in relation to the rea soning of the First
Respondent, the court dealt with a similar claim to the claim of the Third Respondent in
casu. By way of comparison, the issues raised by the employee in that case were inter
alia that the employer failed by not removing the perpetrator from the workplace after
the incident, that the sa nction imposed on the perpetrator was too lenient, and the
employee was not properly assisted.
[78] The Court dealt with these causes of complaint as follows
19:
'It may well have been prudent for Mafodi to have been suspended or removed from
the workplace and transferred to another workplace, however there is no general rule
that suspension or removal from the workplace is automatic in every sexual
harassment complaint. In my view the nature and extent of the sexual harassment may
indicate whether suspension or removal from the workplace of the perpetrator was a
necessary step which the employer ought to have taken...’
Summary
necessary step which the employer ought to have taken...’
Summary
[79] In summary, and even accepting sexual harassment occurred in this instance, which it
actually did not:
79.1 it was an isolated incident and the Third Respondent never properly reported his
complaint to the Appellant as employer as required by section 60(1);
19 At para 53
79.2 the Appellant also complied with section 60(2) as -
79.2.1 considering the incident itself, the joke complained of was not sexual in nature,
nor sexually charged;
79.2.2 considering that the Appellant did have knowledge of the complaint, it , in a bona
fide, justified and fair manner, sought to convene a grievance meeting before an
independent third party to attempt to resolve the matter, in which the T hird
Respondent fully and willingly participated;
79.2.3 this grievance meeting led an agreed resolution, which included Ms Evertse -
Brown once again submitting an apology and the T hird Respondent accepting
the apology;
79.2.4 the Third Respondent never suggested alternative means by which the complaint
should have been dealt with; and
79.2.5 there was also no adverse impact of any kind towards the Third Respondent as a
result of what had transpired.
[80] In light of the above, the Appellant cannot be held vicariously liable for any conduct on
the part of Ms Evertse-Brown and the appeal stands to be upheld and the Arbitration
Award set aside [on the basis that the T hird Respondent failed to satisfy the
requirements of section 60(1) of the EEA and even if he did, the Appellant had
complied with section 60(2) of the EEA].
Third Respondent’s submissions – second leg of the appeal
[81] The EEA was also promulgated in order to guide the employer on how to deal with
sexual harassment matters. The EEA encourages employers to take appropriate
action in order to prevent acts of sexual harassment. However, where an employer
fails to implement the guidelines contained in the EEA, such an employer would attract
penalties.
[82] Section 60(1) to (3) of the EEA makes it clear that an employer shall be held
responsible for the acts of the harasser . It is clear that in this case, Ms Evertse-Brown
made crude demeaning remarks of sexual orientation against the Third Respondent. A
grievance meeting was held and recommendations were made. The App ellant failed to
grievance meeting was held and recommendations were made. The App ellant failed to
implement these recommendations - one of which was to ensure that such acts are not
repeated.
[83] The Appellant did not implement the recommendations, and this shows that it took this
matter lightly even though the dignity and reputation of the Third Respondent was
tarnished by Ms Evertse-Brown.
[84] Ms Evertse-Brown was a senior employee and the manager of the Appellant. She was
required to act in an exemplary manner. However, her behaviour was not exemplary
before other employees. She demeaned the Third Respondent in front of others. The
Appellant failed to realize how serious this wa s and failed to implement the grievance
procedure because it took this matter lightly.
[85] This amounted to a promotion of crudeness and discrimination in the workplace.
Therefore, the Appellant must not complain when its own failures led to the First
Respondent issuing the harsh penalty.
[86] In the matter of Motsamai v Everite Building Products (Pty) Ltd 20, the court stated at
paragraph 20:
“I now turn to the appellant’s complaint that the respondent should not have held a
disciplinary hearing but should have attempted to conciliate between Mbisi and him
because that is what was required in terms of the respondent’s disciplinary code.
Sexual harassment is the most heinous misconduct that plagues a workplace, not
only is it demeaning to the victim, it undermines the dignity, integrity and self-worth
of the employee harassed. The harshness of the wrong is compounded when the
victim suffers it at the hands of his/her supervisor. Sexual harassment goes to the
root of ones being and must therefore be viewed from the point of view of a victim:
how does he/she perceive it, and whether or not the perception is reasonable. In
the circumstances, I believe, to force conciliation or mediation between the
perpetrator and the victim further compounds the wrong. Therefore, unless the
victim agrees to any other form of resolution of a complaint of sexual harassment
the employer should hold a disciplinary hearing against the perpetrator. A
the employer should hold a disciplinary hearing against the perpetrator. A
disciplinary hearing must however be proceeded with, with the victim’s cooperation,
where the victim, having raised the complaint, is uncomfortable with proceeding
with any process whether formal or informal the employer must find a way to deal
with the issue lest he be found culpable for failing to deal with the matter. In the
latter case some form of counselling for the victim might be appropriate if the
employer is of the means of providing it”.
20 (2011) 2 BLLR 144 (LAC) at paragraph 20
[87] The Appellant ignored the Third Respondent’s dissatisfaction with how it dealt with his
grievance. The Third Respondent informed the Appellant that he wanted the grievance
procedure to be followed in relation to his grievance. The Appellant ignored this –
contrary to the judgment in Motsamai supra which confirmed that an employee cannot
ignore its policies or the concerns of the victim.
[88] The Court in Motsamai further stated:
“In this matter the victim wanted a disciplinary hearing: in such an instance it would
have been improper for the respondent to proceed with a process other than a
disciplinary hearing. The fact that the respondent’s disciplinary code provided for
conciliation does not mean that the respondent is inextricably bound to follow that
process. The procedure must be chosen by the employer but it must do so in
consultation with the victim. In the circumstances there are no grounds to interfere
with the Commissioner’s finding that the dismissal was procedurally fair, it is a
decision that a reasonable Commissioner could properly arrive at”.
[89] The First Respondent took this into account that the Appellant was dismissive of the
Third Respondent’s dissatisfaction.
[90] In the matter of Mokone v Sahara Computers (Pty) Ltd21 the court held at page 7 that:
“In my view the fact that her complaint to her manager did not adequately address
the sexual harassment, grounds an inference that the defendant's management and
disciplinary structures were insufficient to do so. Put differently, the defendant
should have had management and disciplinary structures that would immediately
and effectively have dealt with the plaintiff's complaint. For instance, Stenekamp
should have been obliged immediately to have referred the complaint to HR. There
is no doubt that it reasonably was within the defendant's means to create the
necessary structures. In my view the defendant acted unreasonably when it failed to
do so.”
[91] The Court further stated on the same page that:
do so.”
[91] The Court further stated on the same page that:
“Moreover, by reporting to Stenekamp, her manager, the plaintiff brought the sexual
harassment under the defendant's attention. Failing to act to protect the plaintiff in
the circumstances was unreasonable. I conclude that the plaintiff has succeeded in
proving negligence on the part of the defendant.”
21 Mokone v Sahara Computers (Pty) Ltd case no: 21881/09 (2010)
[92] The court’s findings were that the employer must be held liable for failing to take
proper steps and to implement the policy given the non- satisfaction of the employee.
The same principle must apply in this case. It is the same principle that the First
Respondent applied when she came to the conclusion that the Appellant must
compensate the Third Respondent. The First Respondent acted well within the powers
that are afforded to her by the discretion she has.
Third leg of the appeal – Whether or not the Appellant is to pay the Third Respondent
the sum of R100 000.00 as a result of such vicarious liability or any amount at all
Appellant’s submissions – third leg of the appeal
[93] In the event that this Court nonetheless accepts that the Appellant is liable to the Third
Respondent by virtue of the application of section 60 of the EEA , the Appellant takes
issue with the award of compensation made by the First Respondent on the basis that
it is unduly punitive, grossly excessive, and an exercise of her discretion which is
simply not judicial.
[94] For what the F irst Respondent describes as a breach of the right to dignity, s he
awards an arbitrary 'flat rate' of R100 000.00. Considering the Third Respondent earns
R5 500.00 per month, 63 this is compensation equivalent to an award of just more than
18 (eighteen) months' salary.
[95] It is clear from the record that the T hird Respondent proved no actual damages. As
such, the award made by the T hird Respondent is one of compensation, based on a
solatium only.
[96] As was held in SA Airways (Pty) Ltd v Jansen van Vuuren and Another22:
'In the EEA, "damages" refer to an actual or potential monetary loss Cie patrimonial
loss) and "compensation" refers to the award of an amount as a solatium Cie to
non-patrimonial loss). It is conceivable that cases of unfair discrimination may
involve actual (or patrimonial) loss for the claimant, as well as injured feelings (or
non-patrimonial loss).'
non-patrimonial loss).'
[97] In determining the quantum of a compensation award for non-patrimonial loss, the
Court in SA Airways supra
79 said that:
22 (2014) 35 ILJ 2774 (LAC) at para 78
'It is a matter for the discretion of the Labour Court, which discretion must be exercised
in the light of all the relevant facts and circumstances. Most importantly, as provided in
s 50(1) of the EEA, the order must be "appropriate" and in terms of s 50(2) must be
"appropriate" and "just and equitable in the circumstances"'. 65
[98] The Court in Christian v Colliers Properties 23 provided the following guidance in this
regard:
'Section 50(1) of the Equity Employment Act requires the court to make an order
which is appropriate. The determination of appropriate relief requires that the court
duly consider various interests, including the need to redress the wrong caused by
the infringement, the deterrence of future violations, the dispensation of justice
which is fair to all those who might be affected, and the necessity of ensuring that
the order can be complied with.’
[99] The Court in Christian supra also concluded:
‘In the assessment of damages for compensation resulting from unfair
discrimination, useful guidance is to be found in the case of Alexander v Home
Office (1988) IRLR 190 (CA), where the court said the following: 'The objective of
an award for unlawful racial discrimination is restitution. For the injury to feelings, for
the humiliation, for the insult, it is impossible to say what is restitution and the
answer must depend on the experience and good sense of the judge and his
assessors. Awards should not be minimal, because this would tend to trivialise or
diminish respect for the public policy to which the Act gives effect. On the other
hand, just because it is impossible to assess the monetary value of injured feelings,
awards should be restrained. To award sums which are generally felt to be
excessive does almost as much harm to the policy and the result which it seeks as
do nominal awards."
Our courts should strive to achieve this balance. On the one hand, awards should
give effect to the qualities and purposes which underlie the anti -discriminatory
give effect to the qualities and purposes which underlie the anti -discriminatory
measures in the Employment Equity Act. An award should be sufficiently high to
deter the defendant and other persons from similar behaviour in the future —
Buthelezi v Porter 1975 (4) SA 608 (W) at 617. On the other hand, awards should
not be so exorbitant or excessive that they induce a sense of shock, or lead to a
situation where even litigants who have suffered minor consequences as a result of
23 (2005) 26 ILJ 234 (LC) at 240E-G
unfair discrimination reap financial benefits far in excess of what could, in any
normal economic sense, be regarded as their loss. There is good reason for the
conservative approach traditionally adopted by our courts…’
[100] The Court in ARB Electrical Wholesalers (Pty) Ltd v Hibbert24 held that:
'The determination of the quantum of compensation is limited to what is "just and
equitable". The determination of what is "just and equitable" compensation in terms
of the LRA is a difficult horse to ride….’
[101] In this context, the Court in ARB Electrical supra then held that the following principles
should be used as a guideline in deciding appropriate compensation to be awarded:
'[T]he nature and seriousness of the injuria, the circumstances in which the
infringement took place, the behaviour of the defendant (especially whether the
motive was honourable or malicious) , the extent of the plaintiff’ s humiliation or
distress, the abuse of a relationship between the parties, and the attitude of the
defendant after the injuria had taken place.'
[102] The following examples in the case law, specifically in the context of harassment, bear
mentioning:
102.1 In Christian supra, the Court considered that:
‘…. that the acts complained of all occurred on the same day and within a
short space of time, that the only direct physical advance was Mr Collier's
attempt to kiss applicant on her neck, and that there is no evidence before
me of any particularly severe psychological trauma or consequences …', in
awarding R10 000.00 (five months' salary).
70
102.2 In Shoprite Checkers supra, the Court accepted that the employer failed to take the
necessary steps it should have in the manner it initiated and conducted the enquiry
into the complaint, because it was not done in a way that treated both parties to the
complaint even-handedly and appropriately, and the Court considered that the
improprieties of two employees that investigated the matter seriously ta rnished the
improprieties of two employees that investigated the matter seriously ta rnished the
neutrality of the investigation and wase at odds with the degree of sensitivity
expected of an employer in handling such matters, resulting in the Court awarding
R25 000.00 (two and a half months' salary).
24 (2015) 36 ILJ 2989 (LAC) at 24
102.3 In Wallace v Du Toit25, the Court awarded a sum of R25 000.00 (some six months'
salary) in compensation, based on the following reasoning:
In determining the appropriate measure of damages, I must bear in mind
that the award should not be minimal as that would tend to trivialize or
diminish respect for the public policy to which the Act gives effect. On the
other hand, because it is impossible to assess the monetary value of
injured feelings, awards should be restrained. To award sums which are
generally felt to be excessive does as much harm to the policy and the
result which it seeks as do nominal awards (see Alexander v Home Office
[1988] IRLR 190 (CA) quoted with approval in Christian v Colliers
Properties at 240). Applicant led no evidence of any significant additional
factor in support of her damages claim under the Employment Equity Act.
She simply seeks to be compensated for the affront to her inherent dignity
as a woman and her feelings of hurt that she suffered by being dismissed
for falling pregnant. Landman J in a case involving similar unfair
discrimination (Mashava v Cuzen and Woods Attorneys (2000) 21 ILJ 402
(LC)) awarded a solatium of five months over and above the compensation
he awarded for patrimonial loss. The solatium element is in effect damages
for the injuria-element of a dismissal premised upon discrimination ’
102.4 The Court in Biggar v City of Johannesburg
26, awarded compensation in an amount
equivalent to one month’ s salary of the employee, and in doing so reasoned as
follows:
'Regarding the question of compensation, I accept that the applicant
suffered the racial hostility of his colleagues over an extended period of
time and some kind of compensation for the past negative impact on his
dignity caused by the systematic racial harassment would be appropriate.
Likewise some compensation is justified for the employer's partial
approach to initiating disciplinary measures against him alone and not
approach to initiating disciplinary measures against him alone and not
against the two white colleagues who were involved in the fracas. This
must be balanced against the fact that the employer did take some action
on an ad hoc basis. ’
25 (2006) 27 ILJ 1754 (LC) at paras 19-20
26 (2011) 32 ILJ 1665 (LC) at para 25
102.5 The following dictum in Future of SA Workers Union on behalf of AB and Others v
Fedics (Pty) Ltd and Another 27, in the context of the First R espondent's findings of
policy failures on the part of the Appellant:
'In this instance, no evidence has been led to assist the court in
determining an amount of compensation and I am of the view that the
nature of the inadequacies of the steps taken by the respondent and given
that it did take some meaningful action, the award of compensation should
be in the form of a solatium and should be confined to an award of six
weeks' wages for each of the remaining individual complainants….’
[103] Thus, there can be little doubt that the compensation award of some eighteen months'
salary made by the First R espondent is grossly excessive, unduly punitive, and
obviously unfair towards the Appellant, having proper regard to the following
undeniable considerations:
103.1 T he complaint concerned a once off incident.
103.2 The joke, although said by the Third Respondent to be humiliating towards him, was
not sexually charged nor sexual in nature.
103.3 The issue was not egregious.
103.4 When the Third Respondent complained to the perpetrator (Ms Evertse-Brown), an
apology immediately followed.
103.5 T here has been a proper investigation and consultation.
103.6 T he Third Respondent fully participated in the grievance process, which was overall
considered fair and reasonable.
103.7 Even if the Appellant should have dealt with Ms Evertse-Brown more harshly for the
reasons given by the First Respondent, it does not justify a compensation award of
some eighteen months' salary. This is especially true considering the Third
Respondent led no evidence as to the impact of what happened to his dignity or
employment at the appellant. Simply put, no adverse impact of any kind existed in
the workplace.
[104] All considered, a justified and fair compensation award would have been no more than
1 (one) month’s salary.
1 (one) month’s salary.
27 (2015) 36 ILJ 1078 (LC) at para 175
Third Respondent’s submissions – third leg of the appeal
[105] The First Respondent had a discretion in awarding the quantum and acted within the
law based on the discretion bestowed on her.
[106] The First Respondent took into account that the Appellant failed in its duties to protect
the Third Respondent even after he had suffered sexual harassment in the hands of a
senior manager.
[107] Furthermore, the pain of humiliation which led to the Third Respondent not coming to
work the following day because of the embarrassment he suffered at the hands of his
manager in front of his female colleagues. This indignity led to the emotional stress he
suffered.
[108] All of this caused the First Respondent to decide on the quantum which is fair given
the circumstances.
Analysis/Evaluation
First leg of the appeal
[109] Having set out the submissions of the Appellant and the Third Respondent in respect
of the first leg of the appeal in paragraphs 45 to 59 above, I turn now to consider
whether the First Respondent was correct in finding that the Third Respondent was
subjected to unfair discrimination on the grounds of sexual harassment. The applicable
legal framework is found in the EEA, read together with the Code of Good Practice on
the Prevention and Elimination of Harassment in the Workplace. As I have set out
above, the test for establishing whether sexual harassment has occurred requires
consideration of: (i) whether the conduct was unwanted or unwelcome; (ii) whether the
unwanted conduct was of a sexual nature; and (iii) the impact of that conduct on the
complainant, including whether it impaired his dignity. I address each of these
elements in turn.
[110] As regards the first element, the Appellant correctly conceded that the joke made by
Ms Evertse -Brown was unwanted. The Third Respondent’s reaction to the joke –
expressing his dissatisfaction directly to Ms Evertse-Brown on the same day,
absenting himself from work the following day, and ultimately pursuing the matter
absenting himself from work the following day, and ultimately pursuing the matter
through the CCMA – speaks unequivocally to the conduct being unwelcome. This
concession was properly made, and I need say no more on this point.
[111] Turning to the second element – whether the conduct was of a sexual nature – I am
unable to agree with the Appellant’s submission that the joke was not sexual in nature
or sexually charged. The remark made by Ms Evertse-Brown compared the size of
fingerettes to the Third Respondent’s penis. This is, on any objective assessment, a
remark of a sexual nature. It relates directly to the Third Respondent’s genitalia and
falls squarely within clause 5.2.5.6 of the Code, which provides that verbal conduct in
the form of sex-related jokes or insults may constitute sexual harassment. The fact that
the joke was not ‘lewd’ or uttered in what the Appellant describes as a ‘sexual context’
does not alter its character. The content of the remark – a reference to a male
employee’s private parts – is inherently sexual in nature regardless of the context in
which it was uttered or the intention with which it was made.
[112] I turn next to the Appellant’s submission that this was a single, isolated incident and
that the First Respondent erred by failing to have regard to this consideration. It is
correct that clause 4.5.1 of the Code provides that harassment may occur as a result
of a single instance, provided it is of a serious nature. The Appellant relies on the
dictum in Mokoena and Another v Garden Art Ltd and Another supra to suggest that a
once-off incident may not constitute sexual harassment. However, the passage relied
upon by the Appellant in that judgment relates to the question of employer liability
under section 60, not to the threshold question of whether sexual harassment exists in
the first instance. A single incident can constitute sexual harassment if it is sufficiently
serious. In the present matter, the joke was made by a superior (the warehouse
manager) in the presence of multiple female colleagues, and it related to the Third
Respondent’s genitalia. Having regard to the respective positions of the parties in the
Respondent’s genitalia. Having regard to the respective positions of the parties in the
workplace and the circumstances in which the remark was made, I am satisfied that
this was a sufficiently serious single incident to constitute sexual harassment.
[113] As to the impact of the conduct on the Third Respondent, I am not persuaded by the
Appellant’s contention that no prejudice or adverse impact was established. Clause
5.2.8 of the Code provides that the conduct should constitute an impairment of the
employee’s dignity, taking into account the circumstances of the employee and the
respective positions of the employee and the perpetrator in the workplace. The
evidence demonstrates that the Third Respondent: (i) expressed his dissatisfaction
directly to Ms Ever tse-Brown on the day of the incident; (ii) was absent from work the
following day because of the joke; (iii) continued to convey his dissatisfaction
thereafter; and (iv) testified that he felt humiliated. The remark was made in the
presence of female colleagues who laughed, thereby compounding the indignity. It
reduced the Third Respondent’s dignity as an adult male employee and subjected him
to ridicule before his peers. That the Third Respondent did not testify to ongoing
workplace consequences or an inability to continue working with Ms Evertse-Brown
does not negate the impairment of his dignity. The Code does not require that a hostile
working environment be created in perpetuity; it suffices that the conduct impaired the
employee’s dignity.
[114] The Appellant further submitted that the Third Respondent’s reaction – speaking
directly to Ms Evertse-Brown rather than immediately lodging a formal grievance – was
inconsistent with a genuine case of sexual harassment. I disagree. There is no
requirement in the Code that a complainant must follow a particular process in order
for sexual harassment to be established. Clause 5.2.1 of the Code expressly
recognises that there are different ways in which an employee may indicate that sexual
conduct is unwelcom e. The Third Respondent’s direct expression of dissatisfaction to
Ms Evertse-Brown on the same day is, if anything, a clear and immediate indication
that the conduct was unwanted. That he chose to raise the matter directly rather than
through a formal grievance channel does not diminish the sexual nature of the conduct
or its impact on his dignity.
[115] I accept that, as the Appellant submitted, care must be taken not to adopt an over -
zealous approach to conduct that may remotely be seen to constitute sexual
harassment. However, having applied the structured test as set out in the Code and
the applicable case law, I am satisfied that all elements of the test for sexual
harassment have been met in this instance. The conduct was unwanted; it was of a
sexual nature; it was made by a superior in the presence of other employees; and it
impaired the Third Respondent’s dignity. The First Respondent’s finding that the Third
Respondent was subjected to unfair discrimination on the grounds of sexual
harassment was accordingly correct. The first leg of the appeal is dismissed.
Second leg of the appeal
Second leg of the appeal
[116] Having set out the submissions of the Appellant and the Third Respondent in respect
of the second leg of the appeal in paragraphs 60 to 92 above, I turn now to the second
leg of the appeal, which concerns the question of vicarious liability under section 60 of
the EEA. Having found that the Third Respondent was subjected to sexual
harassment, the next enquiry is whether the Appellant, as employer, is liable for the
conduct of Ms Evertse-Brown. Section 60 of the EEA creates a statutory vicarious
liability for employers in respect of conduct by an employee that contravenes the EEA.
The requirements for such liability, as distilled from the authorities cited above, are: (i)
the sexual harassment was committed by an employee; (ii) it took place at the
workplace; (iii) it was brought to the attention of the employer; (iv) the employer failed
to consult all relevant parties or take the necessary steps to eliminate the conduct; and
(v) the employer failed to do all that was reasonably practicable to ensure the
employee would not contravene the EEA. It is common cause that the first three
requirements are satisfied. The dispute centres on whether the Appellant took the
necessary steps to address the complaint.
[117] The Appellant submitted that the requirement of ‘reporting’ under section 60(1) was not
satisfied because the Third Respondent never formally reported the matter to
management through the grievance procedure. I am unable to accept this submission.
Whilst the Third Respondent did not initially lodge a formal written grievance, the
evidence establishes that the Appellant was aware of the incident. Ms Evertse-Brown
herself was the Third Respondent’s direct supervisor and the perpetrator. The Third
Respondent expressed his dissatisfaction to her on the same day. Thereafter, a
meeting was convened with the Appellant’s Human Resources department. The
Appellant then convened a formal grievance meeting before an independent
chairperson. In these circumstances, it cannot be said that the matter was not brought
to the attention of the employer. As the Court held in AK v Right to Care NPC supra,
the statutory purpose of the reporting requirement is to enable the employer to
eliminate the alleged conduct. Where the employer is aware of the conduct and has
actually taken steps to address it – as the Appellant did here by convening the
grievance meeting – the purpose of section 60(1) has been fulfilled.
[118] The more difficult question concerns section 60(2) – whether the Appellant consulted
all relevant parties and took the necessary steps to eliminate the alleged conduct. The
Appellant submitted that it complied with section 60(2) by convening a grievance
meeting, which was conducted fairly by an independent chairperson, and that the
meeting, which was conducted fairly by an independent chairperson, and that the
matter was resolved through Ms Evertse-Brown’s apology. The Third Respondent,
however, submitted that the Appellant failed to implement the recommendations and
ignored his dissatisfaction with the outcome.
[119] I accept that the Appellant did take certain steps in response to the incident. A
grievance meeting was convened before an independent chairperson, Ms Evertse-
Brown apologised, and recommendations were made. However, I am not persuaded
that these steps were sufficient to discharge the Appellant’s obligations under section
60(2). The enquiry under section 60(2) is whether the employer took the ‘ necessary
steps to eliminate the alleged conduct and comply with the provisions of this Act.’ This
requires more than merely convening a meeting. It requires the employer to genuinely
consult with the complainant and to take steps that are responsive to the nature of the
complaint.
[120] In this regard, several considerations are material. First, the evidence establishes that
the Third Respondent did not consider the matter resolved by the grievance meeting.
He had expressed a desire for disciplinary action to be taken against Ms Evertse-
Brown, but this was not reflected in the chairperson’s recommendations. The
chairperson’s own recommendation that the Third Respondent be advised of his right
to refer a dispute to the CCMA within ninety days is telling – it suggests that the
chairperson hi mself recognised that the matter might not have been resolved to the
Third Respondent’s satisfaction. The referral to the CCMA less than two weeks later
confirms this. Second, the Appellant treated the matter as a mere interpersonal
grievance rather than as a complaint of sexual harassment requiring a response
commensurate with the seriousness of such a complaint. As the Court held in
Motsamai v Everite Building Products (Pty) Ltd supra, unless the victim agrees to
another form of resolution of a complaint of sexual harassment, the employer should
hold a disciplinary hearing against the perpetrator. The Appellant failed to appreciate
the gravity of the conduct and to respond accordingly.
[121] The Appellant further submitted that, having complied with section 60(2), it was
unnecessary to consider section 60(4). I have found, however, that the Appellant did
not comply with section 60(2). It follows that section 60(4) becomes relevant. In terms
of section 60(4), an employer is not liable if it can prove that it did all that was
reasonably practicable to ensure that the employee would not act in contravention of
the EEA. The Appellant has not discharged this onus. Whilst the grievance
chairperson recommended training on appropriate office behaviour and the grievance
procedure, the evidence does not establish that the Appellant had, prior to the incident,
procedure, the evidence does not establish that the Appellant had, prior to the incident,
taken proactive steps such as implementing a sexual harassment policy, providing
training on sexual harassment, or creating adequate reporting mechanisms. In these
circumstances, I am satisfied that the Appellant has not established the defence
contemplated by section 60(4).
[122] I am mindful of the caution expressed in Mokoena supra that an objective assessment
must be made of all the steps taken by the employer, and that an armchair -critic-
approach must be avoided. However, having considered the totality of the evidence, I
am satisfied that the Appellant’s response was inadequate in the circumstances. The
Appellant failed to treat the complaint as one of sexual harassment warranting a
commensurate response and failed to genuinely address the Third Respondent’s
expressed dissatisfaction. The First Respondent’s finding that the Appellant is
vicariously liable in terms of section 60 of the EEA was accordingly correct. The
second leg of the appeal is dismissed.
Third leg of the appeal
[123] I turn finally to the third leg of the appeal, which concerns the quantum of
compensation awarded by the First Respondent (having set out the submissions of the
Appellant and the Third Respondent in respect of the third leg of the appeal in
paragraphs 93 to 108 above).
[124] The First Respondent awarded the Third Respondent the sum of R100 000.00, which
represents approximately eighteen months’ gross remuneration. The Appellant
contends that this award is unduly punitive, grossly excessive, and constitutes an
exercise of discretion that is not judicial. The Third Respondent submits that the First
Respondent acted within her discretion. It is trite that a court exercising appeal
jurisdiction is not entitled to interfere with a discretionary award unless that discretion
was not properly exercised. As I have set out above, a discretionary power is regarded
as not having been exercised judicially if the decision-maker applied it capriciously,
was moved by a wrong principle of law or an incorrect appreciation of the facts, did not
bring an unbiased judgment to bear on the issues, or did not act for substantial
reasons.
[125] Section 50(1) of the EEA empowers this Court to make an order that is ‘appropriate’,
and section 50(2) requires that such an order be ‘just and equitable in the
circumstances’. As the Court held in SA Airways (Pty) Ltd v Jansen van Vuuren and
Another supra, the determination of the quantum of a compensation award for non-
patrimonial loss is a matter for judicial discretion, to be exercised in light of all relevant
facts and circumstances. The Court in Christian v Colliers Properties supra provided
further guidance, holding that appropriate relief requires consideration of the need to
further guidance, holding that appropriate relief requires consideration of the need to
redress the wrong, the deterrence of future violations, the dispensation of justice that is
fair to all affected parties, and the necessity of ensuring the order can be complied
with. Awards should not be minimal, as that would trivialise the wrong, but neither
should they be so excessive as to induce a sense of shock.
[126] The Court in ARB Electrical Wholesalers (Pty) Ltd v Hibbert supra held that relevant
considerations include the nature and seriousness of the injuria, the circumstances in
which the infringement took place, the behaviour of the defendant, the extent of the
plaintiff’s humiliation or distress, the abuse of a relationship between the parties, and
the attitude of the defendant after the injuria had taken place. I have regard to these
factors in assessing whether the award of R100 000.00 was just and equitable.
[127] Having considered the totality of the circumstances, I am satisfied that the award of
R100 000.00 – equivalent to approximately eighteen months’ salary – constitutes a
grossly excessive exercise of the First Respondent’s discretion and warrants
interference on appeal. I reach this conclusion for the following reasons. First, this was
a single, isolated incident. There was no pattern of conduct, no repetition, and no
indication that Ms Evertse-Brown had a propensity towards such behaviour. Second,
upon being confronted, Ms Evertse-Brown immediately and sincerely apologised,
acknowledged her wrongdoing, and undertook not to repeat the conduct. Her attitude
after the injuria was contrite and remorseful. Third, whilst I have found that the conduct
impaired the Third Respondent’s dignity, the Third Respondent led no evidence of
ongoing or substantial prejudice. He did not testify to any inability to continue working,
to any hostile working environment, or to any psychological harm beyond the
immediate humiliation. Fourth, the Appellant did take certain remedial steps, even if
those steps were ultimately found to be insufficient for the purposes of section 60(2).
The convening of a grievance meeting before an independent chairperson, the
provision of training thereafter, and Ms Evertse-Brown’s repeated apologies are
relevant mitigating considerations.
[128] I have had regard to comparable awards in the case law. In Christian v Colliers
Properties supra, the Court awarded R10 000.00 (approximately five months’ salary) in
respect of conduct occurring on a single day where no evidence of particularly severe
psychological trauma was led. In Shoprite Checkers (Pty) Ltd v JL and Others supra,
the Court awarded R25 000.00 (approximately two and a half months’ salary) where
the Court awarded R25 000.00 (approximately two and a half months’ salary) where
the employer’s investigation was found to be deficient. In Wallace v Du Toit, the Court
awarded R25 000.00 (approximately six months’ salary) as a solatium for an affront to
dignity. In Biggar v City of Johannesburg supra, the Court awarded one month’s salary
where the employer had taken some action. In Future of SA Workers Union on behalf
of AB and Others v Fedics (Pty) Ltd and Another supra, the Court awarded six weeks’
wages where the employer had taken some meaningful action, but its steps were
inadequate.
[129] Balancing the need to appropriately redress the impairment of the Third Respondent’s
dignity, to deter similar conduct, and to ensure that the award is just and equitable to
all parties, I am of the view that a compensation award equivalent to approximately
R25 000.00 (twenty-five thousand rand), being an amount equivalent to four and a half
months’ gross remuneration, is appropriate in the circumstances. This amount – R25
000.00 – sufficiently recognises the wrong done to the Third Respondent whilst also
reflecting the mitigating circumstances: that this was a single incident, that an
immediate apology was tendered, that the Appellant took some remedial steps, and
that the Third Respondent did not establish ongoing prejudice beyond the immediate
indignity suffered. An award of this magnitude is consistent with the range of awards in
comparable cases and gives appropriate effect to the purposes of the EEA without
being unduly punitive.
[130] Accordingly, the third leg of the appeal is upheld. The First Respondent’s award of
R100 000.00 is set aside and substituted with an order that the Appellant pay s the
Third Respondent compensation in the sum of R25 000.00 (twenty-five thousand
rand), being an amount equivalent to approximately four and a half months’ gross
remuneration.
Costs
[131] In terms of the provisions of section 162(1) of the LRA, which regulates orders for
costs in this Court, I have a wide discretion when it comes to the issue of costs, having
regard to the requirements of the law and fairness after taking into account all of the
relevant facts and circumstances.
[132] In exercising this judicial discretion, the Constitutional Court in Long v South African
Breweries (Pty) Ltd and Others
28 re-affirmed the principle set in Zungu v Premier of the
Province of Kwa-Zulu Natal and Others 29 with regard to costs in employment disputes
and stated that ‘when making an adverse costs order in a labour matter, a presiding
officer is required to consider the principle of fairness and have due regard to the
conduct of the parties.’
[133] I also refer to what the Constitutional Court said with regard to costs in employment
disputes in Union for Police Security and Corrections Organisation v SA Custodial
Management (Pty) Ltd and Others 30 which is that when making a costs order in a
Management (Pty) Ltd and Others 30 which is that when making a costs order in a
labour matter, a Judge is required to consider that costs are not ordinarily awarded,
the principle of fairness must be considered, and due regard must be had to the
conduct of the parties.
28 (2019) 40 ILJ 965 (CC) at para 30.
29 (2018) 39 ILJ 523 (CC) at para 25.
30 (2021) 42 ILJ 2371 (CC) at para 35. See also Zungu v Premier of the Province of Kwa- Zulu Natal
and Others (2018) 39 ILJ 523 (CC) at para 25.
[134] In casu, I do not believe any of the parties acted unreasonably in bringing this appeal ,
or in opposing it. As such, it is my view that the ordinary principle as set out above that
costs do not follow the result should be applied. Therefore, I am satisfied in this case
that no order as to costs is appropriate and fair. A costs order is accordingly not
appropriate.
[135] In the circumstances, the Court makes the following order:
Order
[136] The appeal against the First Respondent’s finding in the Arbitration Award in respect of
the Third Respondent being subjected to unfair discrimination on the grounds of sexual
harassment (the first leg of this appeal) is dismissed.
[137] The appeal against the First Respondent’s finding in the Arbitration Award in respect of
the Appellant being vicariously liable for such unfair discrimination (the second leg of
this appeal) is dismissed.
[138] The appeal against the First Respondent’s finding in the Arbitration Award in respect of
the relief granted to the Third Respondent (the third leg of this appeal) is upheld, and
that finding is set aside and substituted with the following order – “The Appellant shall
pay the Third Respondent compensation in the sum of R 25 000.00 (twenty-five
thousand rand), being an amount equivalent to approximately four and a half months’
gross remuneration calculated at a monthly gross remuneration of R5 500.00 (five
thousand five-hundred rand), within 15 (fifteen) court days of the date of this judgment”
[139] There is no order as to costs.
_____________________
M Sass
Acting Judge of the Labour Court
of South Africa
Appearances
For the Appellant: Dr R Orton (Snyman Attorneys).
For the Third Respondent: Advocate TM Sadike.