Article contributed by Umhlanga Law Firm, Fawzia Khan & Associates
The issue of sexual harassment in the workplace is governed by the Employment Equity Act. Sexual harassment in the working environment is a form of unfair discrimination and is prohibited on the grounds of sex and/or gender and/or sexual orientation. It is viewed an unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace.
An employee of Shoprite Checkers, “JL”, brought a sexual harassment claim against her general manager, under the Employment Equity Act 55 of 1998. She also claimed unfair suspension and constructive dismissal. The incident giving rise to the claim allegedly occurred on 20 December 2016, when JL, a telesales clerk in the Checkers Food Services, was assisting the general manager, KB when he allegedly slapped her on her left buttock. JL claimed that KB giggled thereafter. No one else witnessed the incident. JL reported the incident to another sales assistant. The next day JL also sent a letter to KB and to the regional general manager where she raised a grievance. KB was questioned by his senior about the incident. JL was treated for stress and anxiety as a result of the alleged incident and was booked off work. KB underwent a polygraph test. It showed no deception in denying he had touched JL’s ‘private parts’ on the day in question.
Based on the results of the polygraph test, the employer concluded there was insufficient evidence of sexual harassment claim made against KB. Both parties were expected to sign that they agreed to the outcome of the grievance hearing. JL refused saying that she was clear that the incident had taken place. KB signed the document and left the room. The regional manager asked JL what kind of games was she playing and warned her that KB was considering suing her for defamation. He then suspended her on the same day until 16 January. JL immediately referred a dispute to the CCMA over her alleged unfair suspension and about the alleged sexual harassment asking for action to be taken against KB and compensation.
On 13 January, JL was asked to submit to a polygraph test to determine if she was making false allegations against KB. The report indicated that her responses were deceptive. Her suspension was then extended pending a disciplinary inquiry until 20 January. The charge was that of making a false accusation of sexual harassment against her manager. JL then handed in her letter of resignation stating that she believed she had been constructively dismissed. The matter went to arbitration and the arbitrator found that JL was a more credible witness than KB and that JL’s version was more probable than KB. It also found that Shoprite had committed an unfair labour practice when it suspended JL and that she was unfairly constructively dismissed.
JL was awarded R50 000,00 for the unfair discrimination claim of harassment, six months’ salary for her constructive dismissal and one month’s salary for the suspension which the arbitrator found to be unfair as well as costs. It ordered Shoprite Checkers to adopt a sexual harassment policy and develop a program to inform all its employees of it. Checkers took this award on appeal to the Labour Court. On 10 December 2021, the Labour Court delivered its judgment in the matter. It said that a single incident of unwelcome sexual conduct may constitute sexual harassment. The Labour Court said that the if the alleged incident indeed took place, that it would have amounted to sexual harassment on the part of KB. The only question was whether it probably did occur and based on all the facts before it, the court found the evidence supported JL’s claim. Consequently the court concluded that Shoprite Checker’s appeal against the arbitrator’s findings that JL was sexually harassed should be dismissed.
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