Sexual Harassment Claim Under Section 60 Of The Employment Equity Act 55 Of 1998 (The “Act”)

The Labour Appeal Court in the matter of Amathole District Municipality v CCMA & Others (2023 44 ILJ 109 (LAC) found that the employer should not have been held liable in terms of section 60 of the Act, having regard to the totality of the evidence before the court.

In this matter, the employee had been employed by the municipality in the position of Admin Assistant at the time when a certain Mr. Fredericks was transferred to the municipality and was required to share the office space with the employee for a period of approximately three months.

The employee alleged that, during the three months of sharing the office space, she had been sexually harassed by Mr. Fredericks, which included inappropriate touching and sexual acts.

It was further alleged that, even when Mr. Fredericks moved into his own office space, he would call the employee into his office and would touch her inappropriately and demand that she performs sexual acts, which she complied with.

According to the employee, she did not resist at the time considering that Mr. Fredericks was her direct line of report, and she feared dismissal.

Approximately four months after the alleged sexual harassment stopped, the employee filed a grievance against Mr. Fredericks, however, on the day that the grievance enquiry was set down to take place, the employee did not attend due to ill health.  The employee further indicated that she would take her annual leave after the period of her illness.

Several attempts were made to convene a grievance enquiry upon the employee’s return to work, and the enquiry proceeded approximately some ten months after the alleged harassment stopped.

The presiding officer of the enquiry could not find any basis for the complaint of sexual harassment against Mr. Fredericks but did make certain recommendations for intervention.

Dissatisfied with the outcome of the enquiry, the disgruntled employee referred a dispute to the CCMA, where it was found that the employee was in fact subjected to sexual harassment, which constituted unfair discrimination, and on the basis that the municipality failed to take the appropriate action, the municipality was ordered to pay compensation in the amount of R150 000.00.

On appeal to the Labour Court, the Labour Court could not find any fault with the award, citing that it lacked the ability to judge the credibility of witnesses and could not interfere with the credibility findings of the CCMA.  The appeal was dismissed with costs.

The Labour Appeal Court examined the legal framework of the Act, and analysed the arguments in that context, especially with regard to the Labour Court’s finding that it could not interfere with the credibility findings of the CCMA.

It held that the principle that an appellate court will not interfere with the findings by a trial court is not an inflexible principle.

It was further found that the evidence of the employee was both internally and externally contradictory of nature, and the contradictions of her evidence at the grievance enquiry and at the arbitration proceedings placed a question mark on the credibility of her evidence.

Reference was, for example, made to the terms of endearment that she used in the correspondence to Mr. Fredericks, and which were inconsistent with the response of an individual that was being subjected to unwanted sexual conduct.  It was held that the CCMA had erred in excluding documentary evidence, having regard to the fact that this evidence was of the utmost importance in determining the credibility and overall probabilities that pointed to the consensual nature of the conduct between the employee and Mr. Fredericks.

The finding of the Labour Appeal Court was that the Labour Court had erred in failing to find that the CCMA’s credibility findings were inconsistent with the evidence on record.

In terms of the Code of Good Practice: Prevention and Elimination of Harassment in the Workplace, it was noted that conduct that is not objectively unwelcome could not be deemed to constitute sexual harassment.

Regard was had to the fact that the employee responded to the persistent conduct and requests of Mr. Fredericks, and did not immediately seek advice from anyone, but rather waited for a period of approximately three months to raise the complaint with her boyfriend, and a further four months before filing a formal grievance.

The affectionate and seductive language usage in the communication from the employee towards Mr. Fredericks was an indication that the sexual advances and/or conduct was not unwelcome.

Accordingly, the Labour Appeal Court found that there was insufficient evidence before the CCMA that the employee had suffered sexual harassment and that the harassment constituted unfair discrimination.

The Labour Appeal Court found further that there was no evidentiary basis to determine that the municipality was liable in terms of section 60 of the Act, and set aside the finding of the Labour Court, and the referral to arbitration was dismissed.

This case law highlights the fact that not all harassment/sexual harassment claims filed have merit, however, employers are obliged to take all steps practicable to eliminate harassment once an allegation of harassment has been filed within a reasonable time frame, and to follow the correct procedure as set out in terms of the Code of Good Practice: Prevention and Elimination of Harassment in the Workplace and a company policy and/or a collective agreement.