SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JS 1071/18
In the matter between:
NATIONAL UNION OF METAL WORKERS
OF SOUTH AFRICA (NUMSA) First Applicant
T[…]I L[…] Second Applicant
and
PASSENGER RAIL AGENCY OF SOUTH AFRICA Respondent
Heard: 23-26 August 2021 and 15 September 2021
Delivered: 23 September 2021
Summary: A referral in terms of section 10 of the Employment Equity Act No.
55 of 1998 (EEA). Allegations of sexual harassment – Liability of an employer
in terms of section 60 of the EEA. Reporting the allegations to the employer.
Employer taking steps to eliminate the alleged conduct. Relief against a liable
2
employer not to be dealt with in order to succeed against an employer, an
employee must allege and prove (a) that she was sexually harassed at the
workplace; (b) that she brought the conduct of sexual harassment to the
attention of the employer immediately; (c) that the employer failed to take
steps to eliminate the conduct. Once tha t is shown, an employer is liable for
the conduct of an offending employee. An employer escapes liability if it can
prove that it took necessary steps to eliminate the conduct and that it did all
that was reasonably practicable to ensure that the employee would not
contravene the EEA. By adopting a sexual harassment policy, the respondent
was seeking to ensure that its employees do not make themselves guilty of
sexual harassment . Held: (1) The referral is dismissed. Held: (2) There is no
order as to costs.
JUDGMENT
MOSHOANA, J
Introduction
[1] There can be no doubt that sexual harassment is a heinous and horrendous
conduct since it undermines the dignity of women and the values enshrined in
our Constitution 1. This judgment should not be read to be counten ancing
and/or approving of the hideous conduct of sexual harassment at the
workplace. At the workplace, it is practically impossible for an employer to ,
with certainty; ensure that employees do not contravene the laws of this
country. Section 6 (3) of the Employment Equity Act 2 (EEA) provides that
harassment of an employee is a form of discrimination and is prohibited on
any one, or a combination of grounds of unfair discrimination listed in
subsection (1) of section 6. There can be no shadow of doubt that sexual
1 The Constitution of the Republic of South Africa, 1996.
2 No. 55 of 1998.
3
harassment is prohibited in terms of the EEA. An important question is how
can an employer police the prohibition? Often times , acts of sexual
harassment do not happen openly and they involve only the harasser and the
harassed. The only practicable step to be taken by an employer to ensure that
employees do not contravene the law is to adopt employment policies like a
sexual harassment policy.
[2] In this matter, the applicant, Ms T […] L[…] (L[…]) was sexually harassed by
two of her managers at Pa ssenger Rail Agency of South Africa ( PRASA).
Such conduct by these two employees amount to an unfair discrimination. In
terms of section 6 (1) of the EEA, no person may unfairly discriminate an
employee on the grounds of sex and gender. L[…] is in full arm our against
unfair discrimination in terms of section 6 (1).
[3] Having been subjected to an unfair discrimination, L[…] opted to refer a
dispute in terms of section 10 of the EEA on 10 October 2017 and alleged
victimization and equal pay discrimination. The dispute so referred was
enrolled for conciliation on 15 November 2017. In the referral forms, L[…]
alleged that the dispute arose on 29 May 2017. Conciliation failed to resolve
the dispute referred. L[…] requested resolution of the dispute through
arbitration. On 4 October 2018, Commissioner Masunungure issued a ruling
declining to exercise jurisdiction over the dispute. In terms of section 10 (6) (a)
and (b) of the EEA if all parties to the dispute consent to arbitration an
arbitrator may arbitrate the di spute. Since there was no consent,
Masunungure directed that the dispute be referred to this Court.
[4] On 13 December 2018, L[…] referred the dispute to this Court in terms of rule
6 of the Labour Court Rules. The referral is opposed by PRASA. Ultimately,
this matter was enrolled for trial before me.
Background facts and evidence
[5] As indicated above, L[…] alleged that she has been sexually harassed by two
[5] As indicated above, L[…] alleged that she has been sexually harassed by two
of the senior employees of PRASA, who were her superiors. She was the only
4
witness in her own case. For the purpose of this judgment, it is unnecessa ry
to traverse her entire testimony . She testified about difficulties she
encountered when she commenced employment at PRASA. Of relevance is
that during a work excursion she was subjected to acts of haras sment by her
superior, Mr Ramutloa. She testified about internal transfers that happened to
her during the relevant period. She formed a view that because she was not
acceding to the advances from the relevant managers she was being
punished through unfair internal transfers and by not being appropriately
remunerated even when she act ed in higher positions. She related episodes
of harassment by the two managers most of which were later documented. At
a particular point she was charged with misconduct , found not guilty and she
resigned, which resignation was later withdrawn on the advice of her trade
union.
[6] Of significance in this matter, on 4 October 2016 she , for the first time, lodged
a formal grievance with one of her superiors. In that grievance she dis closed
the ill -treatment she suffered since December 2013. To a large degree she
complained about victimization. As resolution she suggested formal apologies
from the relevant managers and retrospective remuneration as a personal
assistant. On 25 January 2 017 one Mr Van Eeden issued a report and
suggested that allegations of sexual harassment be dealt with in terms of the
Code of Good Practice. On 28 November 2016, L[…] lodged a formal
grievance. In this grievance she narrated the sexual harassment incident s
encountered with two managers; namely Mr Ramutloa and Mr Swartz. One Mr
Makhura was tasked with the investigations of the allegations, but L[…] did
not trust him. Ultimately, a legal firm Bowman and Gilfillan was tasked with the
investigations. L[…] expressed dissatisfaction and refused to participate
further because the investigation was only focused to one manager and not
the other.
further because the investigation was only focused to one manager and not
the other.
[7] PRASA, after its failed bid to obtain an absolution from the instance tendered
the testimony of two witnesses. Mr Nyaba testified about processes related to
the internal transfers, all of which were more operational in nature, and the
5
acting opportunities. He was not made aware of the sexual harassment
allegations by Mr Ramutloa. He was also not aware of the allegations aga inst
Mr Swartz. He confirmed that L[…] should have used the sexual harassment
policy. The next witness was Advocate Le Roux. She interacted with L[…] in
confidence and was not willing to share what L[…] told her. However , in
cross-examination s he was affor ded that permission to disclose the
confidential information. She testified that in relati on to Mr Ramutloa, L[…]
narrated allegations which matched sexual harassment. She gave L[…]
options in line with the sexual harassment policy. In relation to Mr Swart z,
L[…] only related some acts of improper conduct and nothing about sexual
harassment. She testified that her first encounter with L[…] was in August
2015. She made extensive reference to the sexual harassment policy and its
import. She emphasised that sh aring information with colleagues does not
amount to reporting to the employer. Even her confidential discussions with
L[…] do not amount to reporting.
Submissions
[8] It became apparent that this is a case , although referred under section 10,
where L[…] is alleging that PRASA contravened the provisions of section 60
of the EEA. Ms Ramji, who appeared on behalf of L[…] submitted that when
L[…] discussed the sexual harassment allegations with Connie Makgatholele
and Daisy Daniels, she was brin ging the alleged conduct to the attention of
the employer and PRASA failed to take steps as compelled by section 60 (2)
of the EEA. Thus , PRASA is liable for the discrimination perpetrated by those
managers, so went the submission. In the alternative, she submitted that af ter
L[…] formally lodged a grievance, PRASA failed to take steps hence her
referral of the dispute to the Commission for Conciliation, Mediation and
Arbitration ( CCMA). She placed reliance on three judgments, one of which
was a judgment of the Labour Appea l Court (LAC) and the others were
was a judgment of the Labour Appea l Court (LAC) and the others were
Labour Court judgments. Those judgments , in her submission, supports a
contention that a sexually harassed employee may for good and acceptable
reasons not bring the conduct to the immediate attention of an employer.
6
Reporting the incidents to senior managers without following the policy is
sufficient as the LAC found , so she submitted . She submitted that PRASA is
liable to pay L[…] a just and equitable compensation. She sought an
indulgence to make further submissions on t he issue of the relief after this
Court raised certain concerns. Both parties were afforded a further opportunity
to address the Court on the formulated legal question. Given the view this
Court takes at the end, the question has since become moot.
[9] On the other hand, Mr Matyolo, who appeared on behalf of PRASA, argued
that when the allegations were brought to PRASA’s attention steps were
taken as such the provisions of section 60 were not contravened. PRASA is
not liable, he argued. He asked the Court to dismiss the claim of L[…].
Evaluation
[10] This matter turns on the application of section 60 of the EEA. In my view, this
section is a codification of the common law principle of vicarious liability.
Vicarious liability occurs in an instance where the wro ngful acts of an
employee during the course and scope of employment are imputed on the
employer. It is often referred to as strict liability. In the context of the EEA, the
starting point is whether an unfair discrimination has been committed or not.
Section 6 (1) of the EEA prohibits discrimination on any of the listed grounds.
L[…]’s case is that she has been discri minated on the grounds of sex and
gender. She alleged and testified that she has been sexually harassed by
Ramutloa and Swartz. Her version of the harassment acts remains
uncontested and unchallenged. Both Ramutloa and Swartz did not come
forward to dispute the allegations. They are the only pe ople who could have
disputed those allegations. Without hesitation, this Court comes to an
irresistible conclusion that L[…] was sexually harassed. In terms of the policy
of PRASA on sexual harassment, sexual harassment means unwanted
of PRASA on sexual harassment, sexual harassment means unwanted
conduct of a sexual nature. The unwanted nature of sexual harassment
distinguishes it from behaviour that is welcomed and mutual.
7
[11] On the uncontested testimony of L[…], she was subjected to sexual
harassment. The unique nature of this matter is t hat both Ramutloa and
Swartz have left the employ of PRASA. It is unclear to this Court whether they
refused to testify in this Court in order to answer to the allegations made by
L[…]. If they did, PRASA could have compelled them to testify through a
subpoena process. The legal question that obtains is whether an unfair
discrimination took place or not? Section 6 (3) provides that hara ssment of an
employee is a form of unfair discrimination and is prohibited on any one, or a
combination of grounds of unfair discrimination listed in section 6 (1) . On the
basis of these provisions, sexual harassment is a form of discrimination.
[12] Section 11 of the EEA provides that if unfair discrimination is alleged on the
listed grounds, the employer against whom the allegation is made must prove,
on a balance of probabilities that such a discrimination either (i) did not take
place as alleged; or (ii) i s rational and not unfair, or is otherwise unjustified.
On the strength of the allegations of L[…], the onus rested on PRASA to
prove the above stated. It is important to unpack this onus aspect. Ordinarily,
in sexual harassment allegations, the unfair dis crimination is committed by an
employee of the employer and not the employer . Thus, the allegations of
unfair discrimination are made against the employee (s) as opposed to an
employer. The only circumstances under which an employer is deemed to be
a perpetrator is under section 60 of the EEA.
[13] Therefore a pleader who alleges sexual harassment would allege it against an
employee and not the employer. It is of course impossible for an employer as
a legal persona to commit acts of sexual harassment. Only its agents –
employees can do so.
[14] Under common law, an employer owes a duty to protect its employees
against harm whilst working for that employer 3. Sexual harassment is a harm
against harm whilst working for that employer 3. Sexual harassment is a harm
that an employee is protected from. If an employer breaches that legal duty,
an employee has a delictual claim against an employer. Under such a claim,
the onus rests on an employee to prove his or her case. Sight must not be lost
3 See Media 24 Ltd & another v Grobler [2005] 7 BLLR 649 (SCA).
8
that an employee also has a delictual claim against the other employee; in this
case L[…] has a delictual claim against Ramutloa and Swartz4.
[15] I therefore take a view that where the allegation of unfair discrimination is not
made against the employer directly, the provisions of section 11 does not
apply. Section 11, in my view, is reserved for instances where allegations of
unfair discrimination are made against an employer . For an example pay
discrimination or implementation of affirmative action measures in relation to
appointments and/or promotions. As indicated in the introductory paragraphs
of this judgme nt, acts of sexual harassment often happen not openly and at
times in the presence of no other person. So if an employee does not bring
the conduct to the attention of the employer and decides to bring a section 1 0
referral, how will an employer be in a po sition to raise a defence that the
unfair discrimination did not happen, let alone that it is rational, fair or
justifiable? In my view, an employer cannot be in the position to do so.
[16] In my view, a claim predicated on section 60 is one that is civil in nature. It
does not resort under section 10 of the EEA. Thus its onus position is
governed by the principle outlined in Pillay v Krishna and another5 – s/he who
alleges must prove. As I see it, in a section 60 claim, two aspects require
proof; namely (a) contravention of the EEA; and (b) the employer’s failure s. In
the context of section 60, the contravention must have happened through acts
of agents – employees – hence the need to bring that contravention to the
immediate attention of the employer. Contravention of the EEA may happen in
many forms regard being had to the EEA as a whole. In an instance of sexual
harassment, the contravention happens when one employee harasses
another sexually. Since the employer may not be in a position to disprove the
harassment allegation, the onus contemplated in section 11 must lie on the
harassment allegation, the onus contemplated in section 11 must lie on the
employee who committed the act of unfair discrimination and not the employer
since allegations are not made against it.
4 See PE v Dr Beyers Naude Local Municipality and another (2021) 42 ILJ 1545 (ECG).
5 1946 AD 946.
9
[17] Therefore, the conclusion I reach is that section 11 finds no app lication in a
section 60 claim. I also take a view that a section 60 claim may be brought
without first complying with the dispute resolution procedure outlined in
section 10 of the EEA. This conclusion finds support from the plain reading of
section 60 (3). The section, in part, states: “and it is proved that the employee
has contravened the relevant provisions ”. It must naturally follow that the
aggrieved party must prove the alleged contravention. Otherwise, who then
must prove that the employee has cont ravened the relevant provisions? It
cannot be the employer who must prove the contravention.
[18] In order to escape liability, the employer must disprove failure. I do accept that
an employer may also succeed in a section 60 claim if it disproves that the
EEA was contravened. Of course, in order to disprove the failure, the
aggrieved employee must have proven that there is a failure on the part of the
employer. Therefore, the overall onus in a section 60 claim rests with the
aggrieved employee – plaintiff/applicant.
[19] One last aspect to be m entioned on the issue is that the con travention of the
EEA may be proven in separate proceedings and presented in a section 60
claim as proof of contravention . Proper reading of section 10 of the EEA,
suggests that L[…] could have referred a dispute to the CCMA against
Ramutloa and Swartz as individual employees. Section 10 (2) refers to a party
as opposed to an employee. However , if that party is an employee and
alleges unfair discrimination on the grounds of sexual harassm ent, that
employee as a party may refer a dispute to the CCMA for arbitration if certain
conditions are met. Section 10 (8) makes the point I am making in this
judgment to be beyond perspicuous, in that it refers to a person affected by an
award and not an employer specifically.
[20] Accordingly, if a party like L[…] achieve success at the CCMA to prove sexual
[20] Accordingly, if a party like L[…] achieve success at the CCMA to prove sexual
harassment – which will be contravention of the EEA – such a party may use
the CCMA proceedings to prove contravention of the EEA in a section 60
claim lodged in the Labour Court.
10
[21] Lest I be misunderstood, in a section 60 claim, a party suing may prove the
contravention of the EEA intra section 60 proceedings, which proving does
not require a section 10 referral first. That being said, on the evidence be fore
me, L[…] has proven on the balance of probabilities that the two employees of
PRASA have contravened the EEA. The next aspect is the failure and the
deeming provisions. I now turn to it.
Failure and the deeming provisions – contravention of section 60 (2) and 60 (4)
[22] To my mind, the steps of a section 60 claim are the following:
22.1 Allege a contravention at workplace;
22.2 Report the contravention immediately;
22.3 Prove the alleged contravention;
22.4 Allege and prove failure to take the necessary steps;
22.5 Prove the necessary and preventative steps taken.
[23] An applicant who proves the first four above is entitled to a deeming order of
liability. In order to escape liability, the respondent must prove the fifth . In
casu, I take a view that L[…] proved one and three before me. There is a
dispute that L[…] reported the contravention immediately or not.
[24] Before I zoom into the failure and the deeming provisions issue, it is
necessary to dispose of this issue of ‘immediate bringing to the attention o f
the employer’. Key in reporting immediately is that once reported one of the
obligations of an employer is to eliminate the conduct. The word ‘ eliminate’ is
too strong a word. In some instances , in the ugly past of this country, it was
used to mean endin g life. Be that as it may, the dictionary meaning of the
word is to get rid of; remove; or take out. The word ‘ elimination’ is also
employed in section 5 of the EEA. In there, every employer, PRASA in this
instance, is obligated to take steps to promote eq ual opportunities by
eliminating unfair discrimination. With such statutory obligation to get rid of
and remove unfair discrimination, it can not be expected that an employee
and remove unfair discrimination, it can not be expected that an employee
must not act with the necessary haste. There must have been a reason why
11
the legis lature chose to employ the word ‘ immediately’. If lethargy was
anticipated the legislature could have simply stated that the alleged conduct
must be brought to the attention of the employer and leave out the word
‘immediate’.
[25] The dictionary meaning of the word immediate is happening without delay . As
an adjective, it means instant, prompt, instantaneous, quick, on -the-spot or
split-second. In the section, the word immediately is used as an adjective to
modify the phrase ‘brought to the attention ’. The Lab our Appeal Court in
Liberty Group v M. M .6 suggested that the word must be afforded what it
termed a “sensible meaning”. It continued to say that even a limited delay in
reporting is acceptable. In my view , a delay is an antithesis of the word as
literally defined. On the facts that obtained in Liberty, the alleged conduct
happened in May 2009 and the reporting happened in August 2009. There
was, in that case, a delay of about two months. The LAC referred to that as a
limited delay.
[26] In this matter, faced w ith the issue of delay, Ms Ramji submitted that L[…]
brought the conduct to the attention of Daisy and Connie. On L[…]’s version
the incidents involving Ramutloa happened around November 2013. On her
version, she discussed with Connie Makgatholele the issu e of the
Metropolitan report which dealt with the difficult relationship between her and
Ramutloa. Even in her later written grievance, she alludes to having told an
unnamed colleague about the episode, who advised her to tell the CEO , but
she refused beca use Ramutloa was allegedly a family member of the Group
Chief Executive Officer. In her testimony before Court, she testified that she
was scared to tel l the CEO because she felt that her case was not that
important. Contrary to the submission, L[…] did not bring to the attention of
anybody senior the conduct of Ramutloa. The only time she did so was on 28
November 2016. This is three years later. This , in my view, cannot constitute
November 2016. This is three years later. This , in my view, cannot constitute
a limited delay referred to in Liberty. The upshot of this delay is that fo r a
6 (JA 105/2015) dated 07 March 2017.
12
period of three years, PRASA was deprived of its statutory duty to eliminate
unfair discrimination.
[27] On L[…]’s version, she worked with Swartz from 1 July 2014 to 26 November
2014. That was a period of about three months. The incident of giving Swartz
a hug happened, on her version , in July 2014. Some of the alleged incidents
were not attached to any date. However, this Court is prepared to accept that
they occurred between July 2014 and November 2014. L[…] only brought the
conduct of Swart z to the att ention of PRASA on 28 November 2016. This is
about two years later. Again, in my view, this is not a limited delay. During her
testimony she vaguely testified that she related the incidents of Swart z to
Connie. All of that was not attached to any dates. Co nnie apparently resigned
from PRASA but she was not called by L[…] to testify in support of the alleged
reporting.
[28] I must state that on the common cause version of Advocate Le Roux, she
interacted with L[…] from August 2015. In the interactions she only related the
incident of Ramutloa and not any allegation against Swartz. However, this
happened almost a year after working with Swartz. Even if the Court were to
accept that relating it to Advocate Le Roux constitutes bringing to the attention
of the employer, this was after a long delay.
[29] Ms Ramji also placed reliance on the case of Rustenburg Platinum Mines Ltd
v UASA obo Pietersen and others 7. This judgment is distinguishable. In the
first place, it was a review of an arbitration award. The sentiments ex pressed
in paragraph 51 of the judgment were not seeking to address the issue of
immediate reporting as outlined in section 60 (1) of the EEA. Similarly the
judgment of SA Post Office Ltd v CCMA and others 8 was a review application
and did not concern itse lf with the statutory requirement of immediate
reporting. Instead the case cited by Mr Matyolo is on point and almost on all
reporting. Instead the case cited by Mr Matyolo is on point and almost on all
fours with the present ma tter. Accordingly this Court unequivocally endorse
the sentiments expressed by Van Niekerk J in Matambuye v MEC for
7 (JR 641/2016) dated 27 February 2018.
8 (D407/10) dated 15 November 2011.
13
Education and others9, in particular the interpretation placed on section 60 (2)
of the EEA.
[30] The conclusion I reach is that the alleged conduct was not brought
immediately to the attention of the employer within the contemplation of
section 60 (1) of the EEA. Therefore, L[…] failed to show the second step
alluded to above.
[31] Allied to the issue of immediate bringing to the attention, arises the question
to whose attention. Section 60 (1) is specific, it refers to an employer. The
veritable question is, does bringing it to the attention of an employee of the
employer, irrespective of the level of seniority , sufficient or not? The LAC in
Liberty accepted that informing one Mr Haines, whose position is not clarified
in the judgment, but appears to be a Human Resources employee, amounted
to reporting within the meaning of the section.
[32] As I see it , to my mind, the report ing 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 L[…] 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. What
happens if a senior employee is told but decides to keep quiet or do nothing?
Le Roux was uncontroverted when she testified that as wellness practitioners
everything is shared to them in confidence and cannot be disclosed unless
with the permission of the discloser. L[…] did not suggest that she permitted
Connie and/or Le Roux to disclose the confidential information to anyone. In
fact on L[…]’s own version, Connie advised her to formally report it.
[33] It could be said that an employee, who keeps quiet, without being subjected to
[33] It could be said that an employee, who keeps quiet, without being subjected to
the confidentiality handcuffs, is guilty of some form of misconduct, however
such does not translate into affording an employer the go lden statutory
9 (JS840/2012) [2015] ZALCJHB 455 (2 November 2015).
14
opportunity to eliminate the alleged conduct. L[…] testified that she was not
aware of the Sexual harassment policy. One wonders whether an employee
of sufficient intelligence and a law graduate like L[…], would not have made
enquiries about the existence of the policy. Nevertheless, in 2016, she noted
in her grievance to Van Eeden that “ I will follow the formal grievance process
for next level if not resolved within seven days ”. That begs the question as to
who then made her aware of the formal grievance procedures at that time.
[34] PRASA’s Sexual harassment policy was first approved on 1 December 2008.
On the uncontested evidence, this policy is readily available on intranet and
from the Human Resources Department. Reading from its purpose, it exists to
assist the employer to provide a healthy and safe working environment. In
terms of clause 7.2 of the policy, complaints of sexual harassment must be
reported to a supervisor or manager and where the manager is the alleged
transgressor, the next level of supervision. In this instance, the next level was
the GCEO. L[…], despite being advised by a colleague , decided on her own
not to report to the GCEO for reasons that are , in the Court’s view, rather
flimsy – family relations and an unimportant mat ter. In the Liberty matter, Mr
Haines advised the complainant to consult the policy in order to establish
whether what was related to him constituted sexual harassment. Indeed, the
complainant consulted the policy and completed the grievance form and held
it back after the harasser indicate d to her that he was aware of what she was
doing. She concluded that perhaps Haines must have disclosed to the
harasser and she feared retaliation. I take a view that the facts in Liberty are
extremely distinguishable from the facts of this case.
[35] I now turn to the failure issue. Before I do that, I find it appropriate to refer to
what was stated in Lapka v Chertof 10. The District Judge , Matthew Kennelly
said:-
what was stated in Lapka v Chertof 10. The District Judge , Matthew Kennelly
said:-
“To prevail on a claim of sexual harassment based on hostile work
environment, an employee must establish that she was subjected to
unwelcome sexual harassment based on her gender, the harassment
10 Case 05 C 668 USDC 30 October 2006.
15
unreasonably interfered with her work performance by creating an
intimidating, hostile, or offensive work environment, an d there is a basis to
impose liability on her employer.
In cases like this one, in which the harassment by a co -worker is not claimed
to have been anticipated or foreseeable by the employer, the employer’s
liability depends on what it did, or did not do, after the co -worker’s conduct
was brought to the employer’s attention to prevent further harassment…”
[36] I find justification to approve the above sentiments in this judgment . In
concluding the case, the erudite District judge stated the following:
“If an employer fails to take action to prevent further harassment or forces the
victim to bear the costs of solving a problem she has reported, the employer
may be held liable.
Lapka has identified nothing from which a jury reasonably could find that
there was s omething DHS should have done, but did not do, to prevent
further harassment…”
[37] The amended case of L[…] was that she spoke to colleagues and managers
about the Ramutloa allegations, Connie advised her to formally report and
Daniels to ld her to be careful of Ramutloa. These managers never advised
her of the sexual harassment policy , she alleges as already testified to in
chief. This Court wonders what Connie could have meant by formal report if
she allegedly failed to advise L[…] about the existence of the policy. This
amended case was brought in to suit her testimony already delivered in chief.
This Court allowed the amendment. However , on her own version she never
formally reported the Ramutloa incident. In her amended case, she never
reported the Swartz issue for fear of retaliation.
[38] It is common cause that the only time she brought the issue to the attention of
PRASA was in October/November 2016. In terms of clause 7.2.2 of the policy,
PRASA is obligated to fully investigate through the Security and Investigations
PRASA is obligated to fully investigate through the Security and Investigations
Department with the assistance of EAP functionaries. Generally , an
investigation entails consulting all the relevant parties, including the victim. Mr
16
Francois Van Eeden, Head of PRASA Rail Security, promptly investigated the
complaint. On 25 J anuary 2017, in his report he recommended that the
allegations made against Ramutloa and Swartz be investigated in terms of the
Code of Good Practice on the Handling of Sexual Harassment cases. Mr
Joseph Makhura of PRASA Corporate Security was approached b y Van
Eeden to investigate the matter. On 31 January 2018, he also issued a report.
In his report , he highlighted that L[…] was reluctant to cooperate with the
investigation because a law firm was to be involved. In L[…]’s testimony, she
lost trust in Makh ura because he attended a wedding of one of the
perpetrators’ family. In his report, Makhura recommended that PRASA must
apply the recommendations of Bowmans to resolve the dispute. On the
uncontested evidence, L[…] refused to cooperate with the investigat ions by
Bowmans. In her WhatsApp communication with an official from Bowmans
she recorded the following:
“I request to be removed from this investigation because I feel like it is not a
fair process re my grievance. I would never reduce allegations to wri ting if I
could not substantiate/qualify my allegations…I refuse to be used and hope
my request will be respected.
[39] The above communication happened on 24 January 2018. The Bowman
official indicated that if she was not willing to help she will not be pre ssured to
do so. It is clear that PRASA took the necessary steps with a view to eliminate
the conduct but L[…] thwarted the steps by flatly refusing to participate.
Therefore, the logical conclusion to reach is that PRASA did not fail to take
steps. It did, the fact that L[…] frustrated the process , as it were , does not
suggest a failure. Consultation is a two way process. L[…] was certainly a
relevant party. The obligation in section 60 (2) is to consult all relevant parties
and thereafter take the necessa ry steps to eliminate the alleged conduct. The
and thereafter take the necessa ry steps to eliminate the alleged conduct. The
only person who could have assisted PRASA to eliminate the conduct alleged
is L[…]. In any event, it is apparent that steps were taken to suspend Swartz.
In his explanation why he should not be suspended he de nied the allegations
of sexual harassment made by L[…]. Nonetheless no admissible evidence
was placed before this Court with regard to that denial.
17
[40] Therefore, the conclusion this Court reaches is that PRASA did not
contravene section 60 (2). I now turn to the preventative measures
contemplated in section 60 (4). There is no dispute that in December 2008,
PRASA adopted a Policy seeking to ensure that its employees do not act in
contravention of the EEA. In terms of clause 7.1, the following is apparent:
“7.1 Roles and Responsibilities
7.1.1 Management and employees are required to refrain from committing
acts of sexual harassment;
7.1.2 Management and employees have a role to play in contributing
towards creating and maintaining a working environment in which
sexual harassment is unacceptable . They should ensure that their
standards of conduct do not cause offence and they should
discourage unacceptable behaviour.”
[41] With all that it is clear that PRASA took steps to ensure compliance with the
EEA. As indicated earlier, an employer will have no control over the conduct of
its employees. The only manner to affect control is to put in place policies like
this one and to ensure that employees are made aware of them. On the
evidence before me the policy is cir culated at PRASA. Such evidence supports
a conclusion that Ramutloa and Swartz must have been aware of the roles and
responsibilities outlined above.
[42] The conclusion to reach is that PRASA has not contravened section 60 of th e
EEA. Having reached this conclusion, it is unnecessary to traverse the issue of
the relief. Another opportu nity will present itself for this Court to explore the
legal issue of compensation as against damages in a section 60 claims.
[43] In the results, I make the following orders:
Order
18
1. The referral is dismissed.
2. There is no order as to costs.
_______________________
G. N. Moshoana
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Ms B Ramji of Cheadle Thompson & Haysom,
Braamfontein.
For the Respondent: Mr. X D Matyolo
Instructed by : Msikinya Attorneys and Associates, Johannesburg.