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BY   Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: This email address is being protected from spambots. You need JavaScript enabled to view it.. Go to: www.labourlawadvice.co.za.

After unfair dismissal and unfair labour practices the third category of unfair conduct by an employer is unfair discrimination. Section 6 of the Employment Equity Act (EEA) prohibits unfair discrimination against an employee on arbitrary grounds including race, age, disability, sex and many others.

As to the concept of ‘unfairness’ I have previously offered the suggestion that, in the labour law context. ‘unfairness’ occurs when an employer’s conduct infringes the employee’s entrenched rights, is one-sided, unnecessary and/or inappropriate under the circumstances.

Unfair discrimination can take many forms. For example, where an employee is unnecessarily sidelined because he/she is disabled this could be unfair discrimination. If an employee is sexually harassed this is a form of unfair discrimination based on sex. If a worker is paid less than his/her colleagues because he is male or she is female this would constitute prohibited gender discrimination. If a job applicant is unsuccessful because he/she is white this could be found to be unfair on the grounds of race.

For example in the case of Consolidated Billing vs IMATU (1998, 8 BALR 1049) the employees were

turned down for internal appointments because they did not fit the desired racial profile. Because they internal applicants had already been short-listed and were thus acknowledged to have been suitably qualified the IMSSA arbitrator found the failure to appoint the employees to be unfair racial discrimination.

But what does the HR/IR practitioner do if the employee denies that his/her advances were sexual in nature? In such a case can the employer be made liable for unfair sexual discrimination? If the employee merely invited his/her colleague out to lunch this would probably not be seen as sexual harassment. However, if the first employee persisted despite repeated refusals by the second employee this could be seen as unfair discrimination and sexual harassment unless the lunch invitations could be proved to be purely platonic in nature. The circumstances of each case can fall into grey areas of law such as in a case where the aggrieved employee is a woman and the alleged harasser, a male, claims to be gay.

But conduct that does not fall into a grey area of law includes indecent assault, kissing, sexual comments, inappropriate touching amongst other unwelcomed sexually related acts.

In the Real Security case that I quoted in a previous article an employee was “repeatedly subjected to sexual harassment and was indecently assaulted by her supervisor.” Because the employer failed to protect the employee from this harassment resulting in the employee’s resignation the Court found the employer guilty of unfair dismissal based on sexual discrimination. This is despite the fact that the employer neither fired the employee nor harassed her in any way.

In the case of (Grobler vs Naspers Magazine Printers 19 March 2004) reported in The Star on 20 March 2004 the Cape High Court was asked to award R 11,8 million damages to Ms Grobler. It was alleged that Ms Grobler had been sexually harassed by a fellow employee over a period of seven months. In one incident the harasser allegedly attempted to force Ms Grobler at gunpoint to have sex with him and she later suffered severe and debilitating post traumatic stress disorder.

According to the report it was only after Ms Grobler laid a formal compliant via an independent labour consultant that the alleged perpetrator was fired. The Court found that the employer had failed in its duty to protect its employee from sexual harassment. The Court has so far ordered the employer to pay Ms Grobler R200 000 in general damages, past loss of income and medical costs. This excluded further claims in future loss of income amounting to over R10 million.

It is not only such crippling court orders that employers must expect if they fail to protect their employees. Damage to the employer’s reputation and industrial relations can have even worse effect on the employer’s market position, bottom line and long-term viability.

These cases make it clear that, in the context of unfair discrimination ‘unfair’ means that the employer has failed to protect the employee from sexual harassment. This law and the onerous responsibilities it places on HR/IR practitioners means that a comprehensive anti-sexual harassment strategy needs to be devised by each and every employer.

Even if you are a small employer, employ staff of only one gender, have a happy ‘family’ work environment or have never received any sexual harassment complaints your employer could be the next one in court. This is because, if HR/IR practitioners are not proactive in this area you will be unable to prevent your staff from sending offensive e-mails, downloading materials from internet sex sites, telling dirty jokes, making wolf whistles, putting their hands where they should not go and otherwise opening you up to crippling court orders and a muddied reputation.

If you don’t obtain the necessary expertise to develop and implement such a strategy against sexual harassment today it could be you getting ‘screwed’ in court tomorrow.

To attend our November seminar in Cape Town on CHANGES AND DANGERS IN LABOUR LAW 2013 please contact Ronni at This email address is being protected from spambots. You need JavaScript enabled to view it. or on 0845217492.