Employers who don’t adequately address the problem of sexual harassment in the workplace can expect to pay the price in court. As can the perpetrators themselves.
We look at the case of a woman [PE v Dr Beyers Naude Local Municipality and Another (828/2011)  ZAECGHC 35] whose decade long trek through the courts has finally resulted in a damages payout of just under R4m. The employer and the perpetrator are “jointly and severally” liable for both the damages and for a no-doubt substantial legal bill.
Our discussion of the judgment leads us through the factors taken into account by the Court and quotes extensively from its scathing attack on the “supine approach of bovine resignation” adopted by the employer.
Our courts do not tolerate any form of sexual assault or harassment in the workplace and a recent High Court decision confirms the danger to both employees of engaging in this form of misconduct, and to employers of failing to address it.
The sexual assault and the damages claim
In 2009 a “vibrant 23-year-old woman” employed by a municipality as a clerk was sexually assaulted by her immediate superior, a Corporate Services Manager.
The assault was described as follows: “As she looked up he bent down with his head over hers and, putting his mouth over hers, attempted to force his tongue into her mouth. She clenched her teeth and tried unsuccessfully to push him away. After a minute or so he desisted, leaving her with a mouthful of his saliva. She immediately wiped the saliva off her mouth. He then also tried to wipe her mouth with his hand but she knocked it away.”
Importantly, the Court noted that this was in no way just an attempt to “kiss” the victim; it was very far removed from a “kiss” and was instead a sexual assault.
The victim subsequently resigned from her job “after her employer had made her employment intolerable compelling her to resign” and then for a variety of reasons decided to sue for damages for unlawful dismissal in the High Court rather than claim for unfair constructive dismissal via the CCMA (Commission for Conciliation, Mediation and Arbitration). Both avenues are available to any victim of such misconduct, and many factors will determine the best choice in any particular case.
Thus began what proved to be the start of a long and grueling saga, leading firstly to a 2016 High Court finding in the victim’s favour that her employer and the manager were both liable to her for “such damages as she may be able to prove she has suffered in consequence of the sexual assault upon her”.
Back to the High Court went the victim to prove her damages. She had, held the Court after hearing all the evidence, been “deeply traumatized, she suffered from post traumatic stress disorder requiring extensive psychotherapy” and “the course of the life of the deeply traumatised 34 year old woman who testified at the trial on quantum in late July 2020 had been much changed as a result of the assault.”
The employer’s “supine approach of bovine resignation”
The Court hauled the employer over the coals as it “took no responsibility for its conduct and denied liability at the trial. At no stage did it apologize for the tremendous suffering it had caused E[…]. … It exhausted every avenue open to it to avoid having to compensate E[…] for the wrong which she had suffered at its hands.”
Although the manager was found guilty of gross misconduct at a disciplinary enquiry, his sanction was a two-week suspension without pay rather than dismissal, an outcome described by the Court as “mindboggling given the character of the offence, the circumstance that [the manager] had abused his position of authority by assaulting a female subordinate who was in a particularly vulnerable position in that she was a temporary employee at the time that the assault occurred. Furthermore [the manager] did not demonstrate any remorse, remaining defiant to the end. Where an employee has been found guilty of gross misconduct and fails to take the first step towards rehabilitation by acknowledging his wrongdoing, there can be little scope for corrective or progressive discipline.”
Also relevant – the manager had received a suspended sentence of imprisonment after the victim laid charges against him, and he was already on a final written warning for theft from his employer.
The employer’s “approach of washing its hands of the matter, á la Pontius Pilate, fell woefully short of what was required of an employer in the circumstances. The Municipality abdicated its responsibilities to protect E[…] and adopted a supine approach of bovine resignation” (emphasis supplied).
There was much more from the Court in the same vein – the employer had, “through protracted litigation, made her wait so long for justice, thereby adding to her suffering …On a human level, the defence which was put up by the Municipality was devoid of introspection, humility or compassion …it had lengthened and intensified the trauma suffered by E[…] … there was no, as it were, corporate repentance … The Municipality was quick to defend the litigation and slow to listen to E[…]”.
The end result?
The employer and the manager must “jointly and severally” pay to the victim a total of R3,998,955.02 in damages for loss of earnings, psychological/medical expenses, and general damages. They are also in for (doubtless substantial) legal costs, including the costs of four expert witnesses.