UPDATE ON HARASSMENT LAW

MS SARAH CHRISTIEUNIVERSITY OF CAPE TOWN

MORE COMMON TYPES OF HARASSMENT

Racial harassment is a form of social behaviour (by either the employer or employees) that is intended to belittle, marginalise, coerce, manipulate, intimidate, or take advantage of persons belonging to a particular race.

Sexual harassment is unwelcome conduct of a sexual nature that violates the rights of a employee and constitutes a barrier to equity in the workplace

ESTABLISHING RACIAL HARASSMENT

To establish racial harassment an employer must prove on a balance of probabilities that the conduct complained of was

(a)unwanted conduct which (b)was persistent or serious and (c)demeaned, humiliated or created a hostile or intimidating

environment, or (d)was calculated to induce submission by actual or

threatened adverse consequences, and (e)which was related to race or a characteristic associated

with such group.

ESTABLISHING SEXUAL HARASSMENT

Unwelcome

Conduct of a sexual nature

Violates the rights of a employee

Constitutes a barrier to equity in the workplace

CONTEXTUALIZING THE COURTS’ THINKING“It seems to me that in being required to uphold the Constitution and the human rights entrenched in it, the courts are enjoined to play a particularly critical role in, among others, the fight against racism, racial discrimination and the racial abuse of one race by another. …The role of the Labour Court and this court is particularly important in the field of labour and employment. This is so because the decisions of these two courts have a significant impact in almost every workplace throughout the breadth and the length of the country - in offices, in shops, in factories, on farms and elsewhere… Within the context of labour and employment disputes this court and the Labour Court will deal with acts of racism very firmly. This will show not only this court and the Labour Court's absolute rejection of racism but it will also show our revulsion at acts of racism in general and acts of racism in the workplace in particular. This approach will also contribute to the fight for the elimination of racism in general, and racism in the workplace in particular, and will help to promote the constitutional values which form the foundation of our society” Crown Chicken (Pty) Limited t/a Rocklands Poultry v Kapp & Others (2002) 23 ILJ 863 (LAC)

RECENT CASE LAW SEXUAL HARASSMENT

Anglo Platinum Ltd v CCMA & others [2010] JOL 25372 (LC)

Employee resigned; exit interview pointed to harassment by her direct superior over long period; Dismissed for sexual harassment Abuse of power

CCMA arbitrator held that although harasser had made remarks of sexual nature e’ee did not object and seemed flattered; complaint only made after exit interview, prior to dismissal e’ee had described harasser in ‘glowing’ terms as ‘tata’; conduct did not ‘interfere with work effectiveness/ productivity; no evidence of hostile, intimidating or offensive work environment.

Anglo Platinum cont’d

– No grievance lodged– Reason for resignation not connected to supervisor’s

behaviour – Process not appropriate: co. policy provided for informality

which dismissed e’ee asked for.On review: Commissioner did not deal properly with evidence from exit

interview: e’ee expressed was uncomfortable with some aspects of working with boss; at first did not want him to get into trouble but wanted to think about it. Next day said she wanted action taken; she returned to testify.

Cele, J on remedy – send back to CCMA or dispose of on existing evidence:

‘When a person pleads not guilty … there is always the risk that a negative finding will be made against him … The problem is that recidivism looms large. Sexual harassment must be discouraged … [He] occupied a senior position which carried a lot of responsibility. … He broke the trust accorded to him and can no longer be trusted in the company of junior female members of staff.’ para 44.

Department of Labour v GPSSBC & others [2010] JOL 24958 (LAC)

Training programme at Mpekweni Sun: two men made vulgar comments with sexual content to female colleague; repeated despite complaint.

At disciplinary enquiry chair recommended dismissal or if agreement 3 m unpaid suspension. Both men protested, claiming no sexual harassment (‘jokes’ defence). As they did not accept the 3 m alternative D-G dismissed them.

Arbitrator found procedural unfairness – delay but no compensation ordered.

LC upheld the finding of harassment but because D-G had offered 3 m suspension that should have been ordered.

LAC set aside LC decision: D-G could not impose sanction of suspension without pay without consent of employees. As the employees did not take advantage of the offer they

Motsamai v Everite Building Products (Pty) Ltd [2011] 2 BLLR 144 (LAC)Two women complained about M. He said his conduct was a joke: he made sexual advances, verbal and by gesture, told her of a sexual chat, without invitation showed her pornographic material on his computer.

Commissioner considered that M. did sexually harass one of the workers he found the sanction of dismissal too harsh. He ordered re-employment w a FWW and counselling sessions ‘at least once a week’. Both parties took matter on review LC held sanction not justifiable and set aside award.

LAC on the complaint that management should have conciliated the matter. “sexual harassment is the most heinous misconduct that plagues a workplace; not only is it demeaning to the victim, it undermines the dignity, integrity and self-worth of the employee harassed. The harshness of the wrong is compounded when the victim suffers it at the hands of his/her supervisor. Sexual harassment goes to the root of one’s being and must therefore be viewed from the point of view of a victim; how does he/she perceive it, and whether or not the perception is reasonable. In the circumstances I believe, to force conciliation or mediation between the perpetrator and the victim further compounds [the] wrong.”

The reasonable victim SATAWU obo Dlamini/ Transnet Freight Rail, a Division of

Transnet Ltd & another (2009) 30 ILJ 1692 (Arb); [2009] 8 BALR 770 (TOKISO)

FM FOXQUOTE OF THE WEEK“I have sought to recruitmany competent black people, and no sooner have we recruited and trainedthem than they leave. I get so upset … I am stopping this recruitment of black people. I am okay with my Afrikaners. They stay and dothe work and become experts.”

• This appeared in FM 12 September 2006• Transnet Group BEE Manager sent to wide group• One of these sent it on; Dlamini received this in

group distribution from a white manager and complained.

• Respondent held it was in the public domain and not personal

• After long internal process manager ‘H’ was criticised• He apologised in the ff terms:

For an amicable work environment and the benefit of Transnet: freight rail, I give my unqualified apologies for any misunderstanding and hurt that has been caused between the two of us.In reflecting on this it was never the intention to cause harm. I sincerely trust that you are in a position to accept my apology and that this will enhance team spirit in our work environment.Kind regards

Complainant’s feelings• D’s relations with her manager H were not good; he

felt she had not been respectfully treated – there was a history of discomfort with him and believed she had been discriminated against when compared to coloured people in the department;

• D. acknowledged Mboweni talking about Reserve Bank but as a Black person she was offended.

• D. admitted she knew nothing about Tito Mboweni• Her English not fluent and admitted that when she

approached a black colleague he told her he was not offended but …

Dhanjal v Air Canada[1] Canadian Human Rights Tribunal

The tribunal must strive to examine the impugned acts and conduct from the perspective of a reasonable person belonging to a racial minority, putting aside the stereotypes entertained in good faith by the majority. The tribunal must ask itself: from the standpoint of a reasonable Black person, for example, can this conduct be perceived as injurious or humiliating? We believe, therefore, that the seriousness of allegedly harassing conduct must be assessed … according to the criterion and perspective of the reasonable victim”. The determination of the point of view of a “reasonable” third party must take into account the perspective of the person who is harassed.[2]

•[1] (1996), 28 CHRR D/367 (CHRT).

• [2] At para 50.

• Is the conduct “reasonable social interaction.”• Constitutional value of free speech • Hate speech not worthy of constitutional protection. Islamic

Unity Convention v the Independent Broadcast Authority CCT 36/01, para 31.

• Mboweni – patronising to afrikaners but not hate speech • Expressing negative comments about AA (or aspects) NOT

unlawful racial discrimination. Substantive discussion NOT harassment.

• Contentious statement re job hopping does not exceed bounds of ‘reasonable social interaction’.

Hadzic v. Pizza Hut Canada (1999), 37 C.H.R.R. D/252 (B.C.H.R.T.)Serbian worker used an intimidating word towards a Bosnian Muslim colleague who felt it to be a threat to him and his family. He initiated claim against his employer arising from its failure to respond adequately. The Canadian Human Rights Tribunal held that because of the history of the War in Sarajevo and elsewhere in Bosnia his life experience was relevant in determining whether the law should intervene - as it did in that matter - to protect a person against religious harassment.

Was Dlamini ‘a reasonable victim’?

• It is in the public interest, not just of interest to members of the public, that the subject of Affirmative Action (and Black Economic Empowerment), and its successes and failures be discussed and if need be, be subjected to robust debate. There can be no objection to such a discussion being initiated in a workplace.

Was Dlamini a ‘reasonable victim’?• The freedom to engage in vigorous debate is not a licence

to disseminate racist remarks. That the language is flippant does not alter its status as legitimate opinion nor am I persuaded that the language offends against the dignity of black people. The substance of the text is about a problem of retaining black people in employment. If Dlamini disagreed with the opinion, as she clearly does, I find that she suffered no detriment. Her disagreement with the opinion does not make Holdridge’s conduct an act of discrimination and her reaction to the email was excessive and unreasonable.

Black v John Snow Public Health Group [2010] 4 BLLR 374 (LC)

B employed on roll over FTCs with NGO for abt 5 yrs.After no renewal claimed reason ws she had

complained abt sexual harassment by a director.Court accepted Respondent’s evidence that failure to

renew was because of budgetary constraints. Also emerged that the person who did not renew the contract was not aware of the complaint.

It followed that no reasonable expectation of renewal and LC did not deal with allegation that it was automatically unfair.

Employer’s failure to respond/remedy

• Biggar v City of Johannesburg, Emergency Management Services [2011] JOL 26810 Brixton Fire Station

• EEA claim// default award – Fire station worker, lived on site with family.– Subjected to concerted bullying, harassment from white colleagues– B. alleged violent clash between him, his sons and two white

colleagues – he charged w fighting, they not – asked for transfer - No response– Complained: employer response: warnings. Harassment continued

but employer did nothing further.

Biggar cont’d

• Remedy:– Two months’ salary for failing to take necessary

and reasonably practicable steps to prevent harassment

– One month’s salary for unfairly discriminating in disciplining B, but taking no measures vs others

– directed to consider vacant posts– Directed to investigate new complaints of racial

harassment if appropriate to initiate disciplinary measures; if not to give reasons. Para 31.3

RECENT CASE LAW RACIAL HARASSMENT