Transcript Document

UPDATE ON HARASSMENT
LAW
MS SARAH CHRISTIE
UNIVERSITY 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 FOX
QUOTE OF THE WEEK
“I have sought to recruit
many competent black
people, and no sooner have
we recruited and trained
them than they leave. I get
so upset … I am stopping
this recruitment of black
people. I am okay with my
Afrikaners. They stay and do
the 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