‘Sexual harassment claims at South African companies – and the legal case you should know’ 8 January 2022

Section 60(2) of the Employment Equity Act 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. This issue was recently dealt with in the Labour Court case of Shoprite Checkers (Pty) Ltd v JL, with the court providing practical insights as to what is expected of employers when they consult with parties in cases of alleged sexual harassment, says legal firm ENSAfrica…“While the judgment 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.

…ENSAfrica said 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 counseling;
• 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;
• Discuss 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.

…“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.