UPDATE ON HARASSMENT LAW. MS SARAH CHRISTIE UNIVERSITY OF CAPE TOWN. MORE COMMON TYPES OF HARASSMENT.
UPDATE ON HARASSMENT LAW
MS SARAH CHRISTIE
UNIVERSITY OF CAPE TOWN
To establish racial harassment an employer must prove on a balance of probabilities that the conduct complained of was
“It seems to me that in being required to uphold the Constitution and the human rights entrenched in it, the courts are enjoined to play a particularly critical role in, among others, the fight against racism, racial discrimination and the racial abuse of one race by another. …The role of the Labour Court and this court is particularly important in the field of labour and employment. This is so because the decisions of these two courts have a significant impact in almost every workplace throughout the breadth and the length of the country - in offices, in shops, in factories, on farms and elsewhere… Within the context of labour and employment disputes this court and the Labour Court will deal with acts of racism very firmly. This will show not only this court and the Labour Court's absolute rejection of racism but it will also show our revulsion at acts of racism in general and acts of racism in the workplace in particular. This approach will also contribute to the fight for the elimination of racism in general, and racism in the workplace in particular, and will help to promote the constitutional values which form the foundation of our society” Crown Chicken (Pty) Limited t/a Rocklands Poultry v Kapp & Others (2002) 23 ILJ 863 (LAC)
Employee resigned; exit interview pointed to harassment by her direct superior over long period;
CCMA arbitrator held that although harasser had made remarks of sexual nature e’ee did not object and seemed flattered; complaint only made after exit interview, prior to dismissal e’ee had described harasser in ‘glowing’ terms as ‘tata’; conduct did not ‘interfere with work effectiveness/ productivity; no evidence of hostile, intimidating or offensive work environment.
Commissioner did not deal properly with evidence from exit interview: e’ee expressed was uncomfortable with some aspects of working with boss; at first did not want him to get into trouble but wanted to think about it. Next day said she wanted action taken; she returned to testify.
Cele, J on remedy – send back to CCMA or dispose of on existing evidence:
‘When a person pleads not guilty … there is always the risk that a negative finding will be made against him … The problem is that recidivism looms large. Sexual harassment must be discouraged … [He] occupied a senior position which carried a lot of responsibility. … He broke the trust accorded to him and can no longer be trusted in the company of junior female members of staff.’ para 44.
Training programme at Mpekweni Sun: two men made vulgar comments with sexual content to female colleague; repeated despite complaint.
At disciplinary enquiry chair recommended dismissal or if agreement 3 m unpaid suspension. Both men protested, claiming no sexual harassment (‘jokes’ defence). As they did not accept the 3 m alternative D-G dismissed them.
Arbitrator found procedural unfairness – delay but no compensation ordered.
LC upheld the finding of harassment but because D-G had offered 3 m suspension that should have been ordered.
LAC set aside LC decision: D-G could not impose sanction of suspension without pay without consent of employees. As the employees did not take advantage of the offer they
Two women complained about M. He said his conduct was a joke: he made sexual advances, verbal and by gesture, told her of a sexual chat, without invitation showed her pornographic material on his computer.
Commissioner considered that M. did sexually harass one of the workers he found the sanction of dismissal too harsh. He ordered re-employment w a FWW and counselling sessions ‘at least once a week’.
Both parties took matter on review LC held sanction not justifiable and set aside award.
LAC on the complaint that management should have conciliated the matter. “sexual harassment is the most heinous misconduct that plagues a workplace; not only is it demeaning to the victim, it undermines the dignity, integrity and self-worth of the employee harassed. The harshness of the wrong is compounded when the victim suffers it at the hands of his/her supervisor. Sexual harassment goes to the root of one’s being and must therefore be viewed from the point of view of a victim; how does he/she perceive it, and whether or not the perception is reasonable. In the circumstances I believe, to force conciliation or mediation between the perpetrator and the victim further compounds [the] wrong.”
QUOTE OF THE WEEK
“I have sought to recruit
many competent black
people, and no sooner have
we recruited and trained
them than they leave. I get
so upset … I am stopping
this recruitment of black
people. I am okay with my
Afrikaners. They stay and do
the work and become experts.”
For an amicable work environment and the benefit of Transnet: freight rail, I give my unqualified apologies for any misunderstanding and hurt that has been caused between the two of us.
In reflecting on this it was never the intention to cause harm. I sincerely trust that you are in a position to accept my apology and that this will enhance team spirit in our work environment.
Dhanjal v Air Canada Canadian Human Rights Tribunal
The tribunal must strive to examine the impugned acts and conduct from the perspective of a reasonable person belonging to a racial minority, putting aside the stereotypes entertained in good faith by the majority. The tribunal must ask itself: from the standpoint of a reasonable Black person, for example, can this conduct be perceived as injurious or humiliating? We believe, therefore, that the seriousness of allegedly harassing conduct must be assessed … according to the criterion and perspective of the reasonable victim”. The determination of the point of view of a “reasonable” third party must take into account the perspective of the person who is harassed.
Hadzic v. Pizza Hut Canada (1999), 37 C.H.R.R. D/252 (B.C.H.R.T.)
Serbian worker used an intimidating word towards a Bosnian Muslim colleague who felt it to be a threat to him and his family. He initiated claim against his employer arising from its failure to respond adequately.
The Canadian Human Rights Tribunal held that because of the history of the War in Sarajevo and elsewhere in Bosnia his life experience was relevant in determining whether the law should intervene - as it did in that matter - to protect a person against religious harassment.
B employed on roll over FTCs with NGO for abt 5 yrs.
After no renewal claimed reason ws she had complained abt sexual harassment by a director.
Court accepted Respondent’s evidence that failure to renew was because of budgetary constraints. Also emerged that the person who did not renew the contract was not aware of the complaint.
It followed that no reasonable expectation of renewal and LC did not deal with allegation that it was automatically unfair.