In the matter of National Union of Metal Workers of South Africa (NUMSA) and Another v Passenger Rail Agency of South Africa (JS1071/18) [2021] ZALCJHB 312 (2 September 2021), the applicant was sexually harassed by two of her managers at Passenger Rail Agency of South Africa (PRASA).
The Applicant’s case was that she had been discriminated against on the grounds of sex and gender and the employer was liable in terms of section 60 of the Employment Equity Act 55 of 1998 (EEA) because it failed to take reasonable steps to eliminate the alleged sexual harassment.
Section 60 is a codification of the common law principle of vicarious liability which is where the employer is held liable for wrongful acts committed by its employees in the scope of their employment. In the context of the EEA, the starting point is whether unfair discrimination has been committed or not. Section 6(1) of the EEA prohibits discrimination on any of the listed grounds. Once unfair discrimination is established (in this case by two employees against the applicant employee), the question arises whether the employer is liable.
The Court set out the steps of a section 60 claim as follows:
a. Allege a contravention at the workplace;
b. Report the contravention immediately;
c. Prove the alleged contravention;
d. Allege and prove failure to take the necessary steps;
e. Prove the necessary and preventative steps taken.
An employee who proves the first four above is entitled to an order which deems that the employer is liable in terms of section 60. In order to escape liability, the employer must prove the fifth – that it did take the necessary steps to eliminate the sexual harassment.
In terms of section 60 there is an obligation to ensure that there is an “immediate bringing to the attention of the employer”. As soon as allegations of sexual harassment have been reported to an employer, it has an obligation to eliminate such conduct.
The Court found that, contrary to the employee’s version, she only brought the managers’ conduct to PRASA’s attention when she had lodged a formal grievance on 28 November 2016, some three years after the harassment.
The Court found that the alleged conduct was not brought immediately to the attention of the employer and as a result, the employee failed to show the second step set out above.
The Court stressed that the reporting must be made through the mechanism in its adopted policy. It must also be remembered that the bringing to the attention of an employer serves a statutory purpose. That purpose is to enable an employer to eliminate the alleged conduct.
In this case, the Court found that PRASA took the necessary steps with a view to eliminate the conduct but the Applicant thwarted the steps by refusing to participate.
While the employee had been subjected to sexual harassment, the Court found that PRASA was not liable in terms of section 60. The employee had failed to bring the sexual harassment to PRASA’s attention immediately and PRASA had taken reasonable steps to eliminate the conduct when it was finally brought to its attention.
While employers have a statutory obligation to eliminate unfair discrimination in the workplace, an employer cannot be held liable for sexual harassment perpetrated by one of its employees if the employee who seeks to hold the employer liable has not discharged their obligations under section 60 of the EEA.
The crux of the matter is that it is essential to report sexual harassment because an employer cannot be held liable for something it was not aware of.
