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Inadequate sexual harassment policies in the workplace

Updated: Jul 22, 2021

In a recent judgement handed down by the Eastern Cape Division of the High Court in Erasmus vs Dr Beyers Naude Local Municipality and 1 other (Case No. 828/2011) Kroon A J awarded the plaintiff delictual damages, arising from a sexual assault suffered at work, in the form of general damages, past and future medical expenses and past and future loss of earnings totalling almost R4 million.

Ms Erasmus was sexually assaulted at work by her manager, a certain Mr Jack (the second defendant). Ms Erasmus reported the incident to the Municipality which, so the Court found, dealt with the incident appallingly. The Municipality had no sexual harassment policy in place, was ill-equipped to deal with the incident and received and acted upon incorrect advice. The Municipality failed to protect Ms Erasmus and to provide her with a safe work environment.

The Municipality did not suspend Mr Jack and he continued to have contact and interaction with Ms Erasmus. When the Municipality took disciplinary action against Mr Jack, several months after the incident, the chairperson handed down a sanction of a suspension without pay for 2 weeks, a shockingly inappropriate sanction for the offence. The Municipality, incorrectly, took the stance that it was bound by this decision and did not exercise its rights to review the chairperson’s decision in terms of Section 158(1)(h) of the LRA.

Ms Erasmus, who suffered PTSD following the incident, remained in the employ of the Municipality for approximately a year until she resigned alleging that the Municipality had rendered continued employment intolerable. The intolerable circumstances were created, so said Ms Erasmus, by the sexual assault, the ineffective manner in which the Municipality had dealt with it, Ms Erasmus continuing to have contact and interaction with Mr Jack at the Municipality and Ms Erasmus being isolated (many colleagues appeared to align themselves with Mr Jack).

Ms Erasmus did not follow the conventional route of claiming a constructive dismissal, which would have capped her damages to 12 months’ remuneration or 24 months’ remuneration if she made out a case for an automatically unfair dismissal. Instead, Ms Erasmus sought to hold the Municipality and Mr Jack liable in delict, which the Court held was entirely permissible.

Apart from criticising the Municipality for the manner in which it had dealt with the incident of sexual assault, the Court also criticised the Municipality for: engaging in lengthy litigation over the claim; an offer of reinstatement to Ms Erasmus, which the Court held was unlawful and disingenuous; and a belated plea that the incident amounted to an IOD, holding that sexual harassment did not constitute an “accident” for the purposes of COIDA.

This case highlights the duty on employers to protect employees and provide them with a safe working environment. More specifically, that employers ensure that they have policies in place dealing with sexual harassment and that they deal with incidents of sexual harassment properly. The failure to do so exposes employers to significant financial risk and reputational harm.

Contact our Labour Law Department on 041 363 6044 or to assist you with your workplace policies or dealing with incidents in the workplace.

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