Section 60 (2) of the Employment Equity Act requires that if an incident of sexual harassment is alleged in the workplace, the employer must consult with all parties concerned and must take the necessary steps to eliminate the conduct. alleged.
This issue was recently dealt with in the Labor Court case of Shoprite Checkers (Pty) Ltd v JL, the tribunal providing practical information on what is expected of employers when consulting parties in cases of alleged sexual harassment, law firm ENSAfrica said.
In this case, a cashier-salesperson identified as “JL” was helping the general manager, identified as “KB”, to assess the status of an order. JL claimed that while she was accessing a computer, KB slapped her on the left buttock and immediately laughed.
A grievance was filed and Shoprite investigated the allegation by interviewing JL, KB and possible witnesses. As is often the case with sexual harassment complaints, it was JL’s word against KB’s. JL and KB therefore also underwent a polygraph test.
“The investigation ultimately concluded that there was not enough evidence to support the complainant,” ENSAfrica said.
âWhile the judgment deals with many legal aspects regarding the sexual harassment complaint and the surrounding circumstances, the judgment provides relevant considerations for employers when investigating sexual harassment complaints. “
Although Shoprite interviewed all parties and carried out polygraph tests, the employment tribunal found that Shoprite had failed to take the necessary action that it should have taken, in the way it opened and conducted the investigation.
Specifically, a question was raised regarding the following aspects of the investigation:
- The option of an informal process was not considered by Shoprite, and JL was not asked what outcome she was looking for. It was only during the polygraph test that Shoprite realized that JL would have been pleased with an apology and that the incident could have been resolved more simply;
- KB’s senior manager telephoned KB’s wife and assured her that he believed in her husband’s innocence. This senior manager was a party to the initial discussion with KB regarding the grievance. It was noted that it can hardly be trusted in the impartiality of a process to know that the senior manager of the accused party comfortingly reassured the party’s spouse as to his innocence;
- Shoprite provided the afternoon time off for KB to recover from the shock of the complaint, while Shoprite did not grant JL any time off, except on an unpaid basis, when she requested it;
- The employee responsible for conducting the investigation advised KB on what to do in response to the complaint, but did not offer such assistance to JL. Further, statements made by KB regarding JL’s motives were not submitted to JL. Therefore, JL was unable to respond to the allegations regarding his motives;
- Shoprite did not consider measures to minimize contact between JL and KB in the workplace, such as transferring JL to another department while the investigation was taking place;
- JL was not advised;
- JL was not kept informed of the delay in communicating the outcome of the grievance.
The employment tribunal concluded that Shoprite’s conduct, while not the most egregious example of an employer’s failure to deal with a sexual harassment complaint adequately, fell short of the mark. of what was needed.
In particular, the labor court found that the treatment of JL and KB had not been fair and no advice was given to JL on the different ways of handling the case. Compensation in the amount of R25,000 was awarded to JL.
ENSAfrica said the judgment highlights that, when investigating or consulting with employees regarding allegations of sexual harassment, employers may wish to take into account the following:
- Grant leave or special leave, where appropriate, to the complainant while suspending the alleged perpetrator, depending on the allegations made;
- Make reasonable efforts to provide advice to the employee;
- If operationally possible, consider the transfer of the alleged perpetrator or complainant, so that the parties have limited contact with each other in the workplace;
- Taking into account the seriousness of the allegation, considering whether an informal complaint resolution process should be adopted and taking into account the wishes of the complainant;
- Talk to the complainant about other ways to resolve the complaint. For example, adopt an informal process;
- Provide complainants with regular updates regarding the investigation;
- Provide the complainant and alleged perpetrator with an opportunity to respond to allegations or versions that arise during the investigation.
The judgment underlines the seriousness with which the courts examine allegations of sexual harassment, ENSAfrica said.
The Labor Appeals Court described it as “the most heinous misconduct that plagues a workplace,” and the value of a fair investigation into allegations of sexual harassment was underscored by the judgment, said ENSAfrica.
âDue to the naturally sensitive nature of sexual harassment complaints, as well as the harm that can be caused to all parties, but especially victims, it is important to seek legal advice to ensure that complaints are addressed. an adequate and impartial investigation.
“This is not just to make sure all parties are treated fairly, but also to make sure employers don’t take responsibility.”
- Commentary from Jan Norval, senior associate of the law firm ENSAfrica.
Read: Two drunk driving insurance cases in South Africa that had two very different outcomes