Investigating sexual harassment complaints – pertinent considerations
Section 60(2) of the Employment Equity Act 55, 1998 (“the EEA”) requires that if a sexual harassment incident is alleged at work, the employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct.
In Shoprite Checkers (Pty) Ltd v JL and others “JL Case”, the Labour Court provided practical insights as to what is expected of employers when they consult with parties in cases of alleged sexual harassment.
In this matter a teller sales clerk identified as “JL”, was assisting the general manager, identified as “KB”, to assess the status of an order. JL claimed that while she was accessing a computer, KB slapped her on her left buttock and immediately thereafter giggled. A grievance was laid, and Shoprite investigated the allegation by interviewing JL, KB and possible witnesses. As is often the case in sexual harassment claims, it was the JL’s word against that of KB. JL and KB therefore also underwent a polygraph test.
The investigation eventually concluded that there was insufficient evidence to support the complainant. While the Judgement deals with numerous legal aspects regarding the sexual harassment complaint and surrounding circumstances, the Judgment provides pertinent considerations for employers when investigating complaints of sexual harassment.
Despite Shoprite having interviewed all parties and having conducted polygraph tests, the Labour Court found that Shoprite had failed to take the necessary steps it should have taken, in the manner it initiated and conducted the investigation. Specifically, an issue was raised regarding the following aspects of the investigation:
· the option of an informal process was not considered by Shoprite, and JL was not asked what outcome she was seeking. It was only during the conducting of the polygraph test that Shoprite became aware that JL would have been satisfied with an apology, and that the incident could have been resolved more simply;
· KB’s senior manager phoned KB’s wife and assured her that he believed in her husband’s innocence. This senior manager was a party to the first discussion had with KB regarding the grievance. It was noted that it can hardly inspire confidence in the impartiality of a process to know that the senior manager of the accused party was providing comforting reassurance to the party’s spouse about his innocence;
· Shoprite provided the afternoon off to KB to recover from the shock of the complaint, while Shoprite would not give JL any time off, except on an unpaid basis, when she asked for it;
· the employee responsible for conducting the investigation gave advice to KB on what to do in response to the complaint but offered no such assistance to JL. Furthermore, representations made by KB regarding the motives of JL were not put to JL. Therefore, JL was unable to respond to allegations regarding her motives;
· Shoprite did not consider measures to minimise contact between JL and KB at the workplace, such as transferring JL to another department while the investigation took place;
· JL was not offered counselling; and
· JL was not kept up-to-date about the delay in providing the grievance outcome.
The Labour Court found that Shoprite’s conduct, while not the most egregious example of an employer’s failure to deal with a sexual harassment complaint adequately, fell short of what was necessary. In particular, the Labour Court found that the treatment of JL and KB was not even-handed, and no advice was given to JL on the different ways the matter could be handled. Compensation to the amount of ZAR25,000.00 was awarded to JL.
The Judgment highlights that, when investigating or consulting with employees regarding sexual harassment allegations, employers may wish to consider the following:
· providing, where appropriate, leave or special leave to the complainant while suspending the alleged perpetrator, depending upon the allegations made; making reasonable attempts to provide the employee with counselling;
· if operationally possible, considering the transfer of either the alleged perpetrator or the complainant, so that the parties have limited contact with each other in the workplace;
· taking into account the seriousness of the allegation, considering whether an informal process to resolve the complaint should be adopted and taking into account the wishes of the complainant; discussing alternative means of resolving the complaint, with the complainant. For example, adopting an informal process;
· providing complainants with regular updates regarding the investigation;
· providing both the complainant and the alleged perpetrator with an opportunity to respond to allegations or versions which arise during the investigation.
The Judgment highlights the seriousness with which our courts consider allegations of sexual harassment.
The Labour Appeal Court has described it as “the most heinous misconduct that plagues a workplace”, and the value of a fair investigation into sexual harassment allegations has been emphasized by the Judgment.
Because of the naturally sensitive nature of sexual harassment complaints, as well as the harm that may be caused to all parties, but particularly victims, it is important that legal advice be sought to ensure complaints are investigated adequately and even-handedly.
This is not only to ensure that all parties are dealt with fairly, but also to ensure that employers do not incur liability.