Pregnancy and the employer

Bosses must stop sexual harassment or pay up 

Ivan Israelstam

This article was originally published in the Star Newspaper

 


After the Real Security case dealing with sexual harassment was reported in 2003, I warned employers of the dire consequences for business if they did not take decisive preventive action.  In that case, the unfair discrimination claim was based on the law that harassment on the grounds of sex is unfair discrimination.



The automatically unfair dismissal claim was based on the fact that the employee had been forced to resign because her employer had allowed discrimination against her by the supervisor, who had sexually harassed her.

 

The court cited section 60 of the EEA that says:

  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 be brought to the employer's attention immediately.
  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' pay. Despite the warning that the outcome of this case sounded, employers are still not implementing measures to prevent sexual harassment and are obviously still losing cases in the Labour Court.


For example, in the recently decided case of Christian v Colliers Properties (2005, 5 BLLR 479), Ms Christian was appointed as a typist. Two days after she started work, the business owner asked her whether she had a boyfriend and invited her out 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 brought a sexual harassment dispute. In a default judgment, the court decided that the employee had been dismissed for refusing the owner's advances. This constituted an automatically unfair dismissal based on sexual discrimination.


Newly-appointed employees are as deserving of protection from sexual harassment as are their longer serving colleagues. The employer had to pay the employee 24 months' remuneration in compensation; additional damages; interest on the amounts to be paid and the employee's legal costs.


This means in practice that employers must utilise the best labour law expertise available to:

  • Inculcate acceptance at the workplace that a business can be ruined financially by allowing sexual harassment to occur;
  • Design a comprehensive sexual harassment policy;
  • Ensure that every owner, manager and employee knows and understands the severe consequences of committing such acts;
  • Communicate to all concerned that such misconduct will result in severe penalties, including possible dismissal;
  • Ensure that employees feel free to report sexual harassment; and
  • 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 victims of harassment.



Ivan Israelstam is the Chief Executive Officer of Labour Law Management Consulting. Contact him on 011 888 7944 or email  

Our thanks to Ivan and The Star newspaper for allowing us to publish this article

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