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Extreme penalties for sexual harassment

Ivan Israelstam
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In the Real Security case, an unfair discrimination claim was based on the law that sexual harassment is unfair discrimination. The automatically unfair dismissal claim was based on the fact that the employee was forced to resign because her employer allowed her to be discriminated against by the supervisor who sexually harassed her. In this case, the court cited section 60 of the Employment Equity Act (EEA).

In the Real Security case, an unfair discrimination claim was based on the law that sexual harassment is unfair discrimination. The automatically unfair dismissal claim was based on the fact that the employee was forced to resign because her employer allowed her to be discriminated against by the supervisor who sexually harassed her. In this case, the court cited section 60 of the Employment Equity Act (EEA).

This section of the EEA states that:

  • (1) "If it is alleged that an employee, while at work, contravened a provision of this Act, or engaged in any conduct that, if engaged in by the employee's employer, would constitute a contravention of this Act, the alleged conduct must immediately be brought to the attention of the employer.
  • (2) "The employer must consult all the relevant parties and must take all the necessary steps to eliminate the alleged conduct and comply with the provisions of this Act.
  • (3) "If the employer fails to take the necessary steps and it is proven that the employee has contravened the relevant provisions, the employer must be deemed also to have contravened that provision."

The court awarded the employee compensation for unfair dismissal, unfair discrimination, medical expenses, pain, suffering and impairment of her dignity. In total she was awarded R82 000, which equated to 41 months' (almost three and-a-half years') pay.

Employers are still not implementing measures to prevent sexual harassment

Owing to this, they are obviously still losing cases in the Labour Court.

For example, in the recently decided case of Christian vs Colliers Properties (2005, 5 BLLR 479):

  • Ms Christian was appointed as a typist by the employer.
  • Two days after starting work, the owner of the business asked her if she had a boyfriend and invited her to dinner.
  • He also invited her to sit on his lap and kissed her on the neck.
  • When she later objected to the owner's conduct, he asked her whether she was "in or out".
  • When she said that she was "not in" he asked her why he should allow her employment to continue.
  • She was dismissed with two days' pay and referred a sexual harassment dispute.

In a default judgement, the Labour Court decided that:

• The employee had been dismissed for refusing the owner's advances,

• This constituted an automatically unfair dismissal based on sexual discrimination and harassment, and

• Newly appointed employees are as deserving of protection from sexual harassment as are their longer-serving colleagues.

The employer had to pay the employee:

  • A total of 24 months' remuneration in compensation,
  • Additional damages,
  • Interest on the amounts to be paid, and
  • The employee's legal costs.

Use the best labour law expertise available!

Excellent labour law advice will assist you in:

  • Driving home the fact that the business could be ruined should a sexual harassment suit be brought,
  • Designing a comprehensive sexual harassment policy,
  • Ensuring that every owner, manager and employee knows and understands the severe consequences of sexual harassment,
  • Communicating to all concerned that such misconduct will result in severe penalties - including possible dismissal, and
  • Ensuring that all employees feel free to report sexual harassment.

Train all employees in the above-listed issues - as well as in what constitutes sexual harassment, how to deal with it, where to report it and the company's supportive policy towards sexual harassment victims.




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