Employer Liability when Sex Pests Are Allowed to Treat the Workplace as a Lonely Hearts Club: Lessons to be Learnt from Liberty Group Limited v M (2017) 38 ILJ 1318 (LAC)
| Jurisdiction | South Africa |
| Date | 17 June 2020 |
| Pages | 201-238 |
| Author | Pillay, K. |
| Published date | 17 June 2020 |
| Citation | (2019) 31 SA Merc LJ 201 |
EMPLOYER LIABILITY WHEN SEX PESTS
TREAT THE WORKPLACE AS A LONELY
HEARTS CLUB: LESSONS TO BE LEARNT
FROM LIBERTY GROUP LIMITED v M
(2017) 38 ILJ 1318 (LAC)
KARMINI PILLAY*
Senior lecturer, University of Witwatersrand
Abstract
In this contribution, I examine the scope of the employer’s role and
liability in cases of sexual harassment. This is done in the context of the
Liberty case, using this LAC judgment to flag fundamental lessons for
other employers. These are lessons that employers must heed or, as
recent events show, suffer substantial damage to their brand and
business. First, I state the facts of the case and the legal issues that were
dealt with by the LAC. Second, I briefly set out the statement of the
case. Third, I examine the issue of credibility of the complainant in
proving sexual harassment. Fourth, I analyse the legal approach to a
complainant who does not report the alleged sexual harassment
immediately, and whether any adverse inferences on the credibility of
her version can be drawn from this delay. Fifth, I consider the LAC’s
approach to determining the scope of the employer’s liability in terms
of section 60 of the Employment Equity Act 55 of 1998. Lastly, I
consider the general approach adopted by the LAC in its judgment.
IINTRODUCTION
For the first time in history, the social media #MeToo campaign and
other similar campaigns that followed — for example, The Silence
Breakers, #NotInMyName, and #Out your Pig — gave victims of sexual
harassment a platform on which to break their silence as never before.
More than two million #MeToo tweets from over 85 countries were
published by people identifying as or aligning themselves with victims of
sexual misconduct, with more than twelve million #MeToo Facebook
*B Soc Sci LLB (UNP) LLM (UKZN).
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posts within only 24 hours.
1
The #MeToo movement has alerted many
to the sheer magnitude of the problem of sexual harassment in the
workplace — and the South African workplace is no exception.
2
Every
harrowing tale that has unfolded thus far, and that continue to surface,
illustrates that no industry or workplace is immune to the unwarranted
sexual advances of predatory colleagues, clients, managers and supervi-
sors.
3
In the face of these growing global movements, South African
courts have stressed that there is an even greater need for more
sensitisation to this scourge.
4
The South African case of Liberty Group Limited v M (2017) 38 ILJ
1318 (LAC) is the most recent judgment involving sexual harassment in
the workplace to come before the Labour Appeal Court (the LAC). In
this landmark case, the LAC, following the recent judicial trend,
5
sent a
strong message to employers confirming, in no uncertain terms, that
employers will be held accountable for their failure to do all reasonably
possible to ensure that workplaces are free of unfair discrimination. In
this flagship case on how an employer should not handle a complaint of
sexual harassment, the LAC awarded the complainant compensatory
damages of R250 000.
6
This case was an important opportunity for
employers carefully to consider the LAC’s ruling and heed both
its lessons and its warning. Regrettably, more than two years later, its
lessons still do not appear to have resonated loudly and clearly enough
with employers in South Africa. The dangers of employers ignoring
1
Lynn Madeley, ‘#MeToo Is About Changing Behaviour’ https://mg.co.za/article/2017–
12–01–00-metoo-is-about-changing-behaviour, accessed 18 June 2018. See also Yaron
Steinbuch, ‘Time Names #MeToo ‘‘Silence Breakers’ as ‘‘Person of the Year’’’ https://
nypost.com/2017/12/06/time-names-metoo-silence-breakers-as-person-of-the-year/,
accessed on 9 December 2018.
2
See Julia Breakey, ‘#MeToo Trends in SA as Women share Stories of Sexual Harassment’
http://www.bizcommunity.com/Article/196/669/168822.html,accessed on 9 December
2018; Bradley Workman-Davies, ‘#MeTooZA - Sexual Harassment in the South African
Workplace’ http://www.bizcommunity. com/Article/196/548/175469.html, accessed on
9 December 2018.
3
Johan Botes, ‘Workplace Policies - Employers Are Key in Destroying Culture of Sexual
Harassment’ https://www.businesslive.co.za/bd/opinion/2017–10–25-employers-are-key-
in-destroying-culture-of-sexual-harassment/, accessed on 16 April 2018.
4
Rustenburg Platinum Mines Limited v UASA on behalf of Pietersen & others (2018) 39 ILJ
1330 (LC) para 3.
5
See, eg, M v Liberty Group Ltd (2012) 33 ILJ 414; Gaga v Anglo Platinum Ltd & others
(2012) 33 ILJ 329 (LAC); SA Metal Group (Pty) Ltd v CCMA & others (2014) 35 ILJ 2848 (LC);
Campbell Scientific Africa (Pty) Ltd v Simmers & others (2016) 37 ILJ 116 (LAC); Masemole v
CCMA & others (JR1025/2013) [2016] ZALCJHB 183 (17 May 2016); PE v Ikhwezi
Masemola v CCMA & others (JR1025/2013) [2016] ZALCJHB 183 (17 May 2016); University
of Venda v Maluleke & others (2017) 38 ILJ 1376 (LC); Rustenburg Platinum Mines Limited v
UASA obo Pietersen & others (2018) 39 ILJ 1330 (LC).
6
Para 65.
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allegations of sexual harassment continue to reverberate in South Africa
and around the world. The narratives currently unfolding in the media
involving employers, such as the University of South Africa
7
and Grant
Thornton South Africa,
8
are evidence of employers who continue to fall
into the pitfalls of their own reckless oversights.
The scourge of sexual harassment by sex pests, and employers who
ignore it, evidently persists as a deep-rooted problem in the workplace.
Sexual harassment is an unseen risk for many organisations, and leaders
need to learn from the lessons of their predecessors who have become
embroiled in legal battles, like Liberty Group Limited, and be held
accountable if they fail to do so.
9
This is particularly important in light of
recent research indicating that the country’s bleak economy raises the
real risk of increased workplace abuse of this nature.
10
In this contribution, I examine the scope of the employer’s role and
liability in incidents of sexual harassment. This is done in the context of
the Liberty case, using this LAC judgment to flag fundamental lessons for
other employers. These are lessons that employers must heed or, as
recent events show, suffer substantial damage to their brand and
business. First, I state the facts of the case and the legal issues that were
dealt with by the LAC. Second, I briefly set out the statement of the case.
Third, I examine the issue of credibility of the complainant in proving
sexual harassment. Fourth, I analyse the legal approach to a complainant
who does not report the alleged sexual harassment immediately, and
whether any adverse inferences on the credibility of her version can be
drawn from this delay. Fifth, I consider the LAC’s approach to determin-
ing the scope of the employer’s liability in terms of section 60 of
the Employment Equity Act 55 of 1998 (the EEA). Lastly, I consider the
general approach adopted by the LAC in its judgment.
7
Lebo Tshangela, ‘Two UNISA Officials Suspended over Sexual Harassment’ http://
www.sabcnews.com/sabcnews/two-unisa-officials-suspended-sexual-harassment/,accessed
on 9 December 2018.
8
‘How Grant Thornton SA allegedly covered up sexual harassment’ http://
www.702.co.za/articles/297377/listen-how-grant-thornton-sa-allegedly-covered-up-sexual-
harassment, accessed on 30 March 2018; ‘Grant Thornton defends company actions as
another victim comes forward’ http://www.702.co.za/articles/297541/listen-grant-thornton-
defends-company-actions-as-another-victim-comes-forward, accessed on 30 March 2018;
Timeslive, ‘Sex pest controversy results in apology from Grant Thornton’ https://
www.timeslive.co.za/news/south-africa/2018–03–30-sex-pest-controversy-results-in-
apology-from-grant-thornton/, accessed on 9 December 2018.
9
See also Tehillah Niselow, ‘5 times SA CEOs came under fire for how they treated women
- and what happened to them’ https://www.fin24.com/Economy/5-times-sa-ceos-came-
under-fire-for-how-they-treated-women-and-what-happened-to-them-20180809, accessed
on 9 December 2018.
10
See further, http://www.702.co.za/articles/254636/strained-economy-may-mean-sexual-
harassment-goes-unreported-at-the-workplace, accessed 11 September 2018.
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