Sexual harassment claims at South African companies - and the legal case you should know
Section 60(2) of the Employment Equity Act requires that if a sexual harassment incident is alleged at work, the employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct.
The case“The investigation eventually concluded that there was insufficient evidence to support the complainant,” ENSAfrica said.Specifically, an issue was raised regarding the following aspects of the investigation:Shoprite provided the afternoon off to KB to recover from the shock of the complaint, while Shoprite would not give JL any time off, except on an unpaid basis, when she asked for it;
JL was not offered counselling;The Labour Court found 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 what was necessary.Providing, where appropriate, leave or special leave to the complainant while suspending the alleged perpetrator, depending upon the allegations made;
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This issue was recently dealt with in the Labour Court case of S hoprite Checkers (Pty) Ltd v JL , with the court providing practical insights as to what is expected of employers when they consult with parties in cases of alleged sexual harassment, says legal firm ENSAfrica.by.Zanospark — Kwinana’s company.(Getty Images) Mauritius reopened to travellers from South Africa, and eight other previously restricted countries, on Friday.
The case In this matter a teller sales clerk identified as ‘JL’, was assisting 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 her left buttock and immediately thereafter giggled. A grievance was laid, and Shoprite investigated the allegation by interviewing JL, KB, and possible witnesses. During that period nothing else of any note was happening in the Zanospark bank account, evidence leader advocate Kate Hofmeyr told the commission in August 2020. As is often the case in sexual harassment claims, it was the JL’s word against that of KB. JL and KB therefore also underwent a polygraph test.co.
“The investigation eventually concluded that there was insufficient evidence to support the complainant,” ENSAfrica said. The report states that Kwinana failed to give any plausible explanation for why, as the chairperson of SAAT and a board member of SAA, it was lawful and appropriate for her to have received payments from an entity that was a supplier to SAAT. “While the judgment deals with numerous legal aspects regarding the sexual harassment complaint and surrounding circumstances, the judgment provides pertinent considerations for employers when investigating complaints of sexual harassment.” Despite Shoprite having interviewed all parties and having conducted polygraph tests, the Labour Court found that Shoprite had failed to take the necessary steps it should have taken, in the manner it initiated and conducted the investigation. Specifically, an issue 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 seeking. The commission notes that, if Kwinana was legitimately trading on behalf of third parties as her clients, then she would be required to have a licence as a financial services provider. It was only during the conducting of the polygraph test that Shoprite became aware that JL would have been satisfied with an apology, and that the incident could have been resolved more simply; KB’s senior manager phoned KB’s wife and assured her that he believed in her husband’s innocence. Mauritius' decisions to reopen travel with South Africa, Botswana, Namibia, Zimbabwe, Eswatini, Lesotho, Malawi, Mozambique, and Zambia comes just one day after fellow island nation, the Seychelles, did the same .
This senior manager was a party to the first discussion had with KB regarding the grievance. It was noted that it can hardly inspire confidence in the impartiality of a process to know that the senior manager of the accused party was providing comforting reassurance to the party’s spouse about his innocence; Shoprite provided the afternoon off to KB to recover from the shock of the complaint, while Shoprite would not give JL any time off, except on an unpaid basis, when she asked for it; The employee responsible for conducting the investigation gave advice to KB on what to do in response to the complaint but offered no such assistance to JL. “The absence of a licence therefore tends to indicate that Ms Kwinana was not conducting forex trading activities for others, but for herself. Furthermore, representations made by KB regarding the motives of JL were not put to JL. Therefore JL was unable to respond to allegations regarding her motives; Shoprite did not consider measures to minimise contact between JL and KB at the workplace, such as transferring JL to another department while the investigation took place; JL was not offered counselling; JL was not kept up to date about the delay in providing the grievance outcome. Ruling The Labour Court found 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 what was necessary. “Instead of knowing and applying these policies and processes, she testified that she preferred her own subjective opinion of her own independence.” And although Mauritius’ initial decision to extend the travel ban to 31 January was met with disdain, the island nation suddenly changed its plans in an announcement on Thursday.
In particular, the Labour Court found that the treatment of JL and KB was not even-handed, and no advice was given to JL on the different ways the matter could be handled. Compensation in the amount of R25,000 was awarded to JL. ENSAfrica said the judgment highlights that, when investigating or consulting with employees regarding sexual harassment allegations, employers may wish to consider the following: Providing, where appropriate, leave or special leave to the complainant while suspending the alleged perpetrator, depending upon the allegations made; Making reasonable attempts to provide the employee with counselling; If operationally possible, considering the transfer of either the alleged perpetrator or the 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 process to resolve the complaint should be adopted and taking into account the wishes of the complainant; Discuss alternative means of resolving the complaint, with the complainant.” Saica’s chief executive, Freeman Nomvalo, said the chartered accountancy profession “is undergoing a period of profound reflection encompassing debates on how to maintain professional independence as evidenced by Saica’s recent revisions to the institute’s by-laws which include enhancements to the disciplinary process”. For example, adopting an informal process; Providing complainants with regular updates regarding the investigation; Providing both the complainant and the alleged perpetrator with an opportunity to respond to allegations or versions which arise during the investigation. The judgment highlights the seriousness with which the courts consider allegations of sexual harassment, said ENSAfrica. The first phase restricted travellers to designated resorts.
The Labour Appeal Court has described it as “the most heinous misconduct that plagues a workplace”, and the value of a fair investigation into sexual harassment allegations has been emphasized by the judgment, ENSAfrica said. All members who are found to have contravened Saica’s code of professional conduct … will be held accountable without fear or favour including all members mentioned in the comprehensive Zondo commission report when all three parts have been released. “Because of the naturally sensitive nature of sexual harassment complaints, as well as the harm that may be caused to all parties, but particularly victims, it is important that legal advice be sought to ensure complaints are investigated adequately and even-handedly. “This is not only to ensure that all parties are dealt with fairly, but also to ensure that employers do not incur liability.” Commentary by Jan Norval, senior associate at law firm ENSAfrica. Read: . Additionally, visitors will be required to undergo another, free, Covid-19 test upon arrival in Mauritius and a self-administered antigen test on day 5 of their holiday.