Abstract

Keywords

Sexual harassment; vicarious liability; direct liability; disciplinary hearing; unsatisfactory sanction; section 158(1) of the Labour Relations Act; Post- Traumatic Stress Disorder power relationships; psychological safety of a victim; close connection test; enterprise risk; second hearing; unilateral change of sanction.

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1 Introduction

The #MeToo movement, sparked by allegations of sexual harassment against Harvey Weinstein and other high profile men in the entertainment industry,1 highlighted the continuous and widespread abuse of women in the workplace by men in positions of power.2 Despite the common-law liability of employers, legislation imposing liability for sexual harassment on employers,3 and a Code of Good Practice on the Handling of Sexual Harassment in the Workplace,4 sexual harassment is still ruining the lives (and careers) of many women in the workplace in South Africa. The harassers are often not dismissed, with the result that the victims must then carry on with their jobs while being in the constant presence of their harassers. Often these victims cannot cope with the stress resulting from this, and as a result, they are forced to resign, while the perpetrators carry on with their jobs.5

In this article I endeavour to analyse the reasons for this injustice to victims of sexual harassment by analysing E v Ikwezi Municipality,6 a 2016 judgment of the South African High Court. The question that I ask is how the pain and suffering, psychological damages, and loss of a job (to the victim/employee) and the financial loss (to the employer – in this case a municipality), could have been prevented. Ikwezi concerns an employee's claim based on the vicarious liability and direct liability of her employer for sexual harassment by her immediate supervisor. The chairperson of the

disciplinary hearing gave the harasser a slap on the wrist, whereafter the latter continued working while the victim, who was unable to cope with the situation, resigned approximately a year after the incident. Ikwezi mirrors the story of countless other cases of sexual harassment in which the victims are forced to resign (or wish to resign but cannot do so for financial reasons) because of the second trauma,7 namely the unbearable situation of having to continue working with their assailants, because of a lack of protection by their employers.8

I firstly analyse the Ikwezi judgment, specifically the vicarious as well as direct liability of the employer for the sexual harassment of the victim. Secondly, I argue that the employer, in neglecting its duty to protect the victim against physical and psychological damages, contributed to her damages. I further argue that an assessment of the risk that sexual harassment could take place in the particular circumstances could have prevented the harassment and ensuing damages. Lastly, I point out that a botched disciplinary hearing presided over by an incompetent chairperson, as well as ignorance of the municipality of its right to refer the decision of the disciplinary chairman for review, exacerbated the victim's damages. These factors led to her resignation and a claim for more than R4 million against the municipality. Although outside the ambit of this case note, I briefly discuss the possibility that employers, in certain limited circumstances, have the option to hold a second hearing or to unilaterally change an unsatisfactory sanction to one of dismissal, if the seriousness of the misconduct warrants such a change.

2 The facts in Ikwezi

The plaintiff worked for the Ikwezi Local Municipality (the Municipality) as an archives clerk at their Jansenville offices. Her immediate superior, Xola Jack, who held the position of Corporate Services Manager, was stationed at the Klipplaat offices of the Municipality. His job entailed that he often had to visit the Jansenville offices and that he and the plaintiff had to work closely together. They sometimes had to work after hours to prepare council agendas. On one such occasion, Jack made a suggestion to the plaintiff which had a sexual connotation. The victim indicated that she was not interested.9

Approximately three weeks after this incident, Jack came into the plaintiff's office, walked straight up to her where she was sitting behind her desk, bent over her and tried to force his tongue into her mouth. He was unsuccessful only because she clenched her teeth. She struggled to free herself from his

grip and eventually succeeded in pushing him away but was left with a mouthful of his saliva. She was "distressed and anxious" and found the incident to be "utterly revolting".10

She immediately attempted to report the incident to her senior managers, but they were unavailable at that time.11 The next day she had a meeting with the acting mayor and acting municipal manager who were sympathetic and placed her on special leave for a few days. They also undertook to keep Jack away from her until the departmental enquiry into the incident had been finalised. Until such time she was instructed to report to the acting municipal manager and not to Jack. He was instructed not to visit the Jansenville offices without written permission from the municipal manager and not to contact the plaintiff. This arrangement was found to be impractical and Jack was consequently instructed to phone the municipal manager prior to his visiting the Jansenville offices so that the plaintiff could be warned to keep out of his way. The municipal manager later testified that this was to ensure that "she did not become a victim twice".12 The manager was thus aware of the danger of not protecting the plaintiff after the incident. The telephonic arrangement also did not work because the municipal manager was often unavailable when the necessary permission had to be obtained.13 The plaintiff was as a result often confronted with her harasser's presence and at such times she was traumatised and started crying.14

The plaintiff instituted criminal proceedings against Jack in the magistrate's court for sexual assault. He pleaded guilty and a suspended term of imprisonment was imposed. A disciplinary hearing was held at work at the same time and he was found guilty of misconduct. The charge at the disciplinary hearing was that he had tried to kiss the victim, which the court later pointed out was the wrong charge, since he in fact tried to force his tongue into her mouth, which differed vastly from a kiss.15 A sanction of a written warning and two weeks suspension without pay was imposed. This is surprising, considering the seriousness of the misconduct. In several South African cases the seriousness of sexual harassment in circumstances where the harasser was a senior person in a power relationship with the victim had been emphasised.16

The chairperson further made the following astonishing remark:

[Al]though the employer does have committed a serious misconduct during May 2009, I think that this Council needs to uplift the skills of their employee's by introducing a skills development plan (sic).17

In the High Court, Pickering J attempted to explain that the chairperson probably referred to Jack when he referred to the "employer" and further that he meant that the Municipality should inform employees of its sexual harassment policies18 (and not uplift their skills through a skills development plan).

The High Court remarked that "it is a matter of very considerable surprise that the presiding officer did not consider dismissal as an appropriate sanction, especially in the light of the second defendant's previous warning for theft of municipal property".19

The court further remarked that Jack’s conduct

was an intolerable, despicable and violent abuse of his position of authority over her and a two week suspension in no way reflected the gravity of his offence. There is to my mind, no doubt whatsoever that Rhoode's award measured against the charge on which second defendant had been convicted together with his previous infraction was grossly unreasonable and the conclusion is inescapable that Rhoode did not apply his mind properly to the issue of an appropriate sanction. The awful irony is that, because of this, the second defendant continues with his employment … whilst the plaintiff has been forced to resign because of her Post Traumatic Stress Disorder.20

The municipal manager later testified that he was extremely critical of the sanction that had been imposed, but that the Municipality's legal advisor was of the opinion that there was nothing that they could do after Jack had served the two-week suspension.21 The Municipality thus considered itself bound by a sanction which was highly inappropriate, imposed by a clearly incompetent chairperson. Consequently, although the municipal manager was sympathetic, had a high regard for the victim as an employee,22 and knew about the effect that the harasser's presence had on her, he informed her that there was nothing more that he could do, since a disciplinary hearing had been held and a sanction had been imposed.

The plaintiff thus had to live with the burden of working together with her harasser. She saw the harasser quite often and she testified that on such occasions she suffered anxiety attacks. These encounters aggravated the

Post-Traumatic Stress Disorder (PTSD) from which she suffered23 and approximately one year after the incident she found the situation to be so unbearable that she could no longer cope with her job. She resigned and instituted a claim for damages in the High Court.

3 Employers' liability for the sexual harassment of their employees

A victim of sexual harassment has several remedies at her disposal. She could claim damages in terms of the common law on the ground that her employer is vicariously or directly liable for such damages.24 She could also base her claim on the Employment Equity Act 55 of 1998 (EEA) in terms of which harassment constitutes discrimination. Employers could be held liable for the harassment of one employee by another of their employees in terms of section 60 of the EEA.25 Section 186(1) of the Labour Relations Act 66 of 1995 (LRA) presents a further remedy in the form of constructive dismissal, which could constitute an automatically unfair dismissal if the employee was a victim of sexual harassment.26 However, to avoid constructive dismissal and retain their jobs, victims may possibly also rely on the common-law right to implied trust and confidence in the employment contract to secure an order of specific performance against their employers.27

The victim in Ikwezi chose to claim damages in the High Court in terms of the common law. She alleged that the employer was vicariously liable for Jack's actions and further that the employer was directly liable on account of negligence. The basis of her direct liability claim was the fact that the employer knew about the trauma that the presence of Jack caused and that the employer had neglected its legal duty to protect her against such trauma.28 It is significant that she resigned only about a year after the incident, indicating that it was not so much the sexual harassment itself but rather the trauma suffered afterwards caused by her having to work with her harasser and having to constantly see him that aggravated the PTSD which eventually led to her resignation.

4 Direct liability

The representatives of the Municipality did not deny that they had a legal duty to protect the victim, but alleged that they complied with this duty by warning the victim whenever Jack had to attend the Jansenville office, by instructing him not to contact the victim and by instituting a disciplinary hearing.29 They later conceded that these measures did not protect the plaintiff adequately, but alleged that they only had this duty during the narrow period between the act and the disciplinary hearing. It was what happened after this period which finally had a severe psychological impact on the victim and eventually led to her resignation. The view that they had a duty to protect her only during the said narrow period is, in the light of jurisprudence, clearly incorrect. In Media 24 v Grobler30 and Piliso v Old Mutual31 it was emphasised that employers indeed have a duty to protect employees against physical as well as psychological harm during their employment period. There is no authority for narrowing down this duty to only the period between the unlawful act and the disciplinary hearing. Serious sexual harassment should almost without exception lead to dismissal, which would prevent a situation where the victim and harasser would have to work together. However, if the harasser is not dismissed, the duty of the employer towards the employee to ensure her safety will continue for the duration of the working relationship.

Pickering J in Ikwezi remarked that the Municipality rightly conceded that they had a legal duty to protect the complainant after the incident and up to the disciplinary hearing, that they failed to protect her, and that they were thus liable for the damages that she suffered during this period. The court left open the question of liability for the period after the disciplinary hearing and proceeded to establish that the employer was vicariously liable for the complainant's damages. It is not clear why the court did not consider the direct liability of the employer for the period after the disciplinary hearing; apparently because this was unnecessary given the fact that her claim based on vicarious liability was successful.

It is submitted that the Municipality had a duty to ensure the psychological safety of the claimant even after the disciplinary hearing and that they should have made arrangements to ensure this. It was clear that the presence of the harasser caused the victim to have anxiety attacks and that it had a profound negative effect on her psychological well-being. The Municipality had a duty to take measures by for instance deploying the harasser to a job not entailing his having to visit the offices where the employee worked. The court disappointingly did not examine the duty of the

employer for the psychological safety of the employee in the period after the disciplinary hearing. This would have emphasised that employers do bear this duty and would have encouraged employers to take the necessary measures to ensure the protection of the victim.

5 Vicarious liability

The requirements for an employer to be held liable on the ground of vicarious liability are trite; namely that there existed an employment relationship, that the employee acted unlawfully, that the act caused damage to the claimant, and lastly, that the act was performed within the course and scope of the employee's employment.32

This last requirement often leads to difficulties in the so-called "deviation cases", where the employee was not merely negligent, but acted in his or her own interests,33 and especially where the employee wilfully committed an unlawful act,34 as in Ikwezi.

Grobler v Naspers35 was the first South African case which extended the vicarious liability of the employer to an act of sexual harassment. The court in Grobler HC conducted a thorough analysis of vicarious liability for sexual harassment in several other jurisdictions. In Canada, the ground-breaking Canadian decision in Bazley v Curry36 emphasised the need for sufficient closeness of the employee's unlawful conduct to the enterprise risk, for imposing vicarious liability in the case of intentional torts:

[I]n determining the sufficiency of the connection between the employer's creation or enhancement of the risk and the wrong complained of … the relevant factors may include, but are not limited to, the following:

The House of Lords in Lister v Hesley Hall37 was guided by the decision in Bazley. The court in Lister, as in Bazley, had to decide whether a charity could be held liable for the sexual harassment of vulnerable children in its care facilities. In Lister the court endorsed the test requiring a close connection or sufficient connection between the unlawful act and the duties of the employee as formulated in Bazley.38

The court in Grobler HC applied the factors (enumerated by the court in Bazley) that would indicate such a close connection, and held that the enterprise indeed enhanced the risk that the supervisor would harass Ms Grobler.39 The court regarded the constitutional rights to inherent dignity, bodily integrity and equality as a further ground for imposing vicarious liability.40

On appeal in Grobler SCA, the Supreme Court of Appeal (SCA) confirmed the amount of damages that the High Court ordered, but held the employer directly liable on the alternative claim that Media 24 negligently failed to ensure the victim's safety. Here the court held as follows:

It is clear in my opinion that the legal convictions of the community require an employer to take reasonable steps to prevent sexual harassment of its employees in the workplace and to be obliged to compensate the victim for harm caused thereby should it negligently fail to do so.41

The court held the employer directly liable on the ground that the victim's supervisors knew that she was being harassed and nevertheless negligently failed in their duty to protect her psychological safety.42 Although the SCA held the employer directly liable for failing to protect the employee, the court did not find that the employer was not also vicariously liable. The development of the doctrine of vicarious liability in Grobler HC is thus still good law.

One year after the judgment in Grobler SCA, the Constitutional Court in K v Minister of Safety and Security43 and later on in F v Minister of Safety and Security44 applied the "sufficiently close connection" test to include the act of rape, which can be seen as the most intensive form of sexual harassment. The "sufficiently close connection" test used in these cases to establish

whether the perpetrators acted within the course and scope of their employment establishes that even though the perpetrator did not act in the interests of his employer, and acted subjectively in his own interest, objectively speaking there was still a close enough connection to his duties and the relevant act to still hold the employer liable.45 The dignity, privacy and bodily integrity of the victims, and in the case of the police force, their constitutional duty to protect the public, were important factors in finding that the employer was vicariously liable.

The "sufficiently close connection" test, looked at through the "prism of the constitution", was followed in other cases46 and is now well embedded in South African law.

As remarked above, Grobler HC was the first South African case which extended the vicarious liability of the employer to an act of sexual harassment of one of its employees by another employee. Ikwezi is the second of this kind. In between Grobler HC and Ikwezi, K and F were decided, but did not change the "sufficiently close connection" test on which the liability of the employer was founded in Grobler HC. Although the Constitutional Court in K and F did not rely on enterprise risk to facilitate a close connection, but rather focussed on the trust that the public should be able to place in the police force to enable them to do their job,47 the trust relationship could be seen as closely aligned to the risk that an enterprise places in the community. It is the trust of the victim in the perpetrator (based on his special position) that places the perpetrator in a position to harm the victim.

The court in Ikwezi set out to develop the common-law doctrine of vicarious liability to include the sexual harassment of an employee by another superior employee.48 The court quoted Ponnan J in City of Cape Town v South African National Roads Authority Ltd,49 who warned against "overzealous reform".50 Mindful of this warning, the court nevertheless found in the light of the test developed by the Constitutional Court in K and followed in F that the employer in Ikwezi could be held liable because the position of authority in which the perpetrator was placed had the effect that the victim "trusted him implicitly" and further "it was because of the nature of their employment relationship that the opportunity presented itself to [the]

second defendant".51 This development of the common law by the court was not strictly necessary as the High Court in Grobler HC had already in 2005 developed the doctrine of vicarious liability to include the sexual harassment of a secretary by her superior.

The court in Ikwezi found that the position of trust in which the employer placed Jack, as Corporate Services Manager, facilitated the act of sexual harassment.52 The nature of the work (working closely together with the plaintiff after hours) gave him the opportunity to harass the plaintiff, who was in a vulnerable position.

Although vicarious liability is a form of faultless liability and can be imposed independently from the employer-imposed measures to prevent unlawful conduct, one of the theories providing justification for such strict liability is deterrence. The reasoning is that the possibility of liability for the unlawful conduct of their employees will encourage employers to take measures to diminish the risk of such conduct occurring.53 In Ikwezi the warning lights should have gone on when a man and a woman in an imbalanced power relationship often worked together after hours. This should have indicated to the Municipality that an increased risk existed that sexual harassment could take place. Had the Municipality acted on the possibility that sexual harassment could take place, the harassment could possibly have been prevented. Pickering J in Ikwezi remarked that although schedule 2 of the Local Government: Municipal Systems Act54 32 of 2000 provides that "a staff member of a municipality may not embark on any actions amounting to sexual harassment", there was no evidence that the municipality trained its employees in this regard.55 Further, there was no evidence that the content of the Code of Good Practice on the Handling of Sexual Harassment in the Workplace was brought to the attention of the employees of the Municipality.

6 Review of the decision of the chairperson of the disciplinary hearing by the Labour Court

The court in Ikwezi pointed out that the wrong advice was given to the Municipality, namely that they could not do anything after the chairperson of the disciplinary hearing imposed the sanction.

In the court's view, the inappropriate sanction should have been referred for review in terms of section 158(1)(h) of the LRA. This section provides that

any action or decision of the state as employer may be referred to the Labour Court for review on any ground permissible in law.

Two questions arise in this respect. Firstly, are decisions by chairpersons of disciplinary hearings involving the conduct of the employees of a municipality considered decisions of "the State as employer" and further, what would constitute "grounds permissible in law"?

Municipalities are in terms of section 239 of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution) without doubt organs of state. In terms of jurisprudence, the decision of a chairperson of a disciplinary hearing who acts on behalf of a municipality will be regarded as an act performed by the state in its capacity as employer56 and may therefore be referred for review in terms of section 158(1)(h).

Regarding "grounds permissible in law", the court in Ikwezi analysed Hendricks v Overstrand Municipality,57 in which the particular municipality was successful in reviewing a decision of the chairperson of a disciplinary hearing. The Labour Court in that case stated that the municipality "had the right and was obliged to approach the Labour Court to review it where it failed to pass the test of rationality and reasonableness".58 Hendricks concerned an employee working for the Overstrand Municipality as Chief, Law Enforcement and Security. He was charged and found guilty inter alia of dishonesty in that he made false representations regarding his own speed fines. He moreover instructed junior colleagues to facilitate the false statements. The chairperson of the disciplinary hearing imposed a sanction of a final written warning valid for twelve months, as well as suspension without pay for a period of ten days.59

Not happy with the decision, the Overstrand Municipality referred the decision to the Labour Court for review in terms of section 158(1)(h) of the LRA. The municipality argued that because of the seriousness of the offence and the senior position held by the employee, the employment relationship had broken down and that a continued employment relationship would be intolerable. According to the municipality the sanction imposed by the chairperson was irrational and unreasonable, which was a ground for review in terms of section 158(1)(h) of the LRA.60

The Labour Court agreed with the municipality and set aside the sanction imposed by the chairperson. The employee took the decision on appeal,

arguing that in the light of the decisions in Chirwa v Transnet Limited61 and Gcaba v Minister of Safety and Security62 the chairperson's decision could not be reviewed. The courts in these two judgments held that the unfair termination of the employment of public employees or unfair labour practices perpetrated by their employer, did not entitle them to seek remedies in terms of administrative law, but that they should make use of dispute resolution in terms of the LRA.63 The argument of the employee in Hendricks was that in the light of these judgments, the municipality could not rely on the grounds of irrationality and unreasonableness, which are in essence administrative-law grounds. The employee maintained that Gcaba overruled the decision in Ntshangase v MEC for Finance Kwa-Zulu Natal64 (which lent support to a review procedure based on just administrative action).65

In Ntshangase both the Labour Appeal Court (LAC) and the SCA held that since the court in Sidumo v Rustenburg Platinum Mines66 had found that arbitration at the Commission for Conciliation Mediation and Arbitration (CCMA) constitutes administrative action, disciplinary hearings regarding state employees also constitute administrative action. Such a hearing must thus be lawful, reasonable and procedurally fair. If not, it does not amount to just administrative action and can be reviewed.67 The SCA in Ntshangase found further that since there was a breakdown of trust between the employer and employee, the decision of the chairperson not to dismiss the employee (who was found guilty on twelve counts of misappropriation of funds and dishonesty) was a decision that no reasonable person could reach on the facts of the case and was grossly unreasonable.68

The LAC in Hendricks did not agree with the argument of the employee in that case, namely that Chirwa and Gcaba overruled Ntshangase, and the LAC consequently upheld the decision of the Labour Court. The LAC pointed out that in Chirwa the Constitutional Court held that when the state acts in its capacity as employer, the employee is well protected by the LRA and that there is no need for reliance on section 33 of the Constitution or the Promotion of Administrative Justice Act 4 of 2000 (PAJA), which gives

effect to section 33.69 The LAC in Hendricks further remarked that in Gcaba the court agreed with Chirwa that public sector employees should use the remedies for unfair dismissal and unfair labour practices provided for in sections 191 and 193 of the LRA. The court in Hendricks further emphasised that the Chirwa and Gcaba decisions did not make a finding on section 158(1)(h) of the LRA. It held as follows:

The underlying guiding rationale of the ratio decidendi in Gcaba and Chirwa is that once a set of carefully-crafted rules and structures has been created for the effective and speedy resolution of disputes and protection of rights in a particular area of law, it is preferable that dismissal and unfair labour practices contained in the LRA should be used by aggrieved employees rather than seeking review under PAJA. The ratio cannot justifiably be extended to deny an employer a remedy against an unreasonable, irrational or procedurally unfair determination by a presiding officer exercising delegated authority over discipline. … The only remedy available to the employer aggrieved by the disciplinary sanction imposed by an independent presiding officer is the right to seek administrative law review; and section 158(1)(h) of the LRA empowers the Labour Court to hear and determine the review. To hold otherwise is to deny the employer any remedy at all against an abuse of authority by the presiding officer.70

From the above it can be deduced that dismissal by the state does not entitle employees to administrative remedies (they will have to seek their remedies in terms of the LRA), but the state as an employer can allege that a decision of a chairperson was unreasonable and irrational, which are grounds for review in terms of section 158(1)(h) of the LRA.

Based on the above discussion, the Municipality in Ikwezi would probably have been successful had they referred the decision of the chairperson, described by the High Court as grossly unreasonable,71 for review.

Was the sexual harassment sufficiently serious to constitute a breakdown in the employment relationship?72 If so, this would have constituted a ground for arguing that a sanction less than dismissal would be irrational and unreasonable and thus prone to be reviewed. If one considers the judgment in Campbell Scientific Africa (Pty) Ltd v Simmers,73 in which the harasser was dismissed for merely asking "Do you want a lover tonight?" the sexual assault in Ikwezi would no doubt constitute serious misconduct and would warrant dismissal. In Campbell the court remarked as follows on power relationships and sexual harassment: "At its core, sexual harassment is concerned with the exercise of power and in the main reflects the power

relations that exist both in society generally and specifically within a particular workplace".74

In the same vein, the court in Gaga v Anglo-Platinum Ltd75 remarked as follows: "By and large employers are entitled (indeed obliged) to regard sexual harassment by an older superior on a younger subordinate as serious misconduct, normally justifying dismissal".76

There is no doubt that the sexual harassment of the plaintiff in Ikwezi was sufficiently serious to have caused a breakdown in the employment relationship. The nature of the act itself, the age difference between the victim and harasser, as well as the superior position of the harasser all point to a serious case of sexual harassment. A sanction short of dismissal was thus unreasonable and irrational and therefore a ground permissible in law that could be referred for review in terms of section 158(1)(h) of the LRA.

7 Measures available to employers outside section 158(1)(h) of the LRA

Although it falls outside the ambit of this case discussion, I briefly refer to the alternatives (outside section 158(1)(h) of the LRA) available to employers who are dissatisfied with the sanctions imposed by the chairpersons of disciplinary hearings. Since the review process in terms of section 158(1)(h) of the LRA is not available to private employers, they will have to make use of alternative measures. State organs may also make use of these alternative measures if referral for review is for some reason not appropriate.

7.1 A second hearing

Should employers retry employees in a second hearing, an employee may raise the issue of double jeopardy (accused persons should not be tried and disciplined twice for the same offence).77 The seminal case of BMW v De Lange78 considered whether second hearings of employees are permissible. Here the court held that fairness is the overriding consideration when deciding whether a second hearing could be held.79 However, the court cautioned that if the second hearing is "ultra vires the employer's disciplinary code … that might be a stumbling block. Secondly it would probably not be regarded to be fair … save in rather exceptional circumstances".80 In BMW the fact that new evidence emerged after the first

hearing was regarded as exceptional circumstances which justified a second hearing. The test in BMW has been followed in several cases, namely Branford v Metrorail Services,81 YF and Multichoice Management Services,82 Theewaterskloof Municipality and Independent Municipal & Allied Trade Union on behalf of Visagie,83 the last two cases like Ikwezi dealing with sexual harassment. The disciplinary code for senior managers in the Local Government: Municipal Systems Act does not contain any possibility of a second hearing or unilateral decision by management (an issue which is discussed in the next section) and no new evidence came to light after the hearing. It is thus doubtful whether a second hearing in Ikwezi would have been regarded as fair in terms of the BMW judgment.

7.2 The employer unilaterally dismissing the employee

In contrast to the lenient approach followed by the courts regarding the permissibility of second hearings, the LAC held in County Fair Foods (Pty) Ltd v Commissioner for Conciliation Mediation and Arbitration,84 South African Revenue Services v Commissioner for Conciliation Mediation and Arbitration85 and South Africa Revenue Services v Commissioner for Conciliation Mediation and Arbitration86 that employers cannot unilaterally change a sanction imposed by a chairperson of a disciplinary hearing if no provision to that effect is made in the disciplinary code. Such a change, according to some of the judgments, would even be unlawful and invalid.87 The effect of these decisions is that if a chairperson did not dismiss an employee, and the employer subsequently decided to dismiss the employee, the latter will remain in his or her position, because the employer's decision to dismiss would be invalid.88

However, the Constitutional Court in South African Revenues Services v Commissioner for Conciliation Mediation and Arbitration overruled this line of argument.89 In this case a white employee referred to black colleagues as "kaffirs" on two occasions. The chairperson of the disciplinary hearing imposed a sanction of a final written warning valid for six months and suspension without pay for ten days. The employee was further ordered to go for counselling.90 The disciplinary code, giving effect to a collective agreement, did not make provision for a unilateral change by management, but the SARS Commissioner nevertheless changed the final written warning to dismissal. Kruger was not given an opportunity to be heard.91 The employee referred an unfair dismissal to the CCMA where the arbitrator, in line with the decisions in County Fair Foods and South African Revenue Services v Commission for Conciliation Mediation and Arbitration, reinstated him on the ground that the unilateral change was unlawful as the commissioner exercised powers that in terms of the disciplinary code were not his to exercise. Both the Labour Court and the LAC agreed with the CCMA.92

Eventually the Constitutional Court found that the reinstatement of the employee after such serious misconduct which rendered the employment relationship intolerable was a decision that (in light of Sidumo) no reasonable decision maker would take.93 The court did, however, award damages to the employee on the ground that the dismissal was procedurally unfair.94 The decision of the employer to dismiss the employee, contrary to the decision of the chairperson of the disciplinary hearing, was thus apparently regarded as substantively fair. The issue of the employer's unilateral decision which according to the lower courts was invalid, was not before the court as SARS only challenged the reasonableness of the reinstatement. The Constitutional Court placed substance above form which is, considering the seriousness of the offence in the South African context, to be welcomed. The situation appears to be that if an employer unilaterally dismisses an employee after a sanction short of dismissal by the disciplinary chairperson, and an arbitrator reinstates the employee, a court could decide (after having regard to the seriousness of the misconduct) that the arbitrator's award is a decision that no reasonable decision maker could

take. However, the lack of guidance on the aspect of the invalidity of a unilateral decision where the disciplinary code (often negotiated with the trade union) does not make provision for such a decision is disappointing and this issue calls for further research.

8 Conclusion

Allegations of sexual harassment by men in powerful positions, taking place in workplaces all over the world, brought to the fore by the #MeToo campaign, emphasise the need to focus on measures that will prevent the human damage caused by sexual harassment. In this article I have endeavoured to find answers to the question of why victims of sexual harassment often resign after such harassment. An analysis of the Ikwezi case provided some insight into the reasons for this phenomenon. In this case, the victim's symptoms of PTSD were aggravated when the harasser was not dismissed after a disciplinary hearing, because the victim had to continue working with him. As in many other cases of this kind, she could not cope with the effect that his presence had on her, with the result that she was forced to resign approximately one year after the incident.

The court in Ikwezi rightly found that the Municipality was vicariously liable for the sexual harassment of its employee. Although the court embarked on developing the doctrine of vicarious liability so that it could include sexual harassment in the specific circumstances of Ikwezi, it was not strictly necessary. The High Court in Grobler HC had already developed the test for vicarious liability in similar circumstances, namely a man in a senior position harassing a woman who was his subordinate. In Grobler HC the creation of risk by the employer was considered an important factor in creating the sufficiently close connection (later also required by the Constitutional Court in K and F) between the employee's employment and the unlawful act to give rise to vicarious liability. The court in Ikwezi also emphasised the element of risk. This emphasis is to be welcomed, since employers will be encouraged to assess the risks of potential sexual harassment occurring in their business and will hopefully further be encouraged to take the necessary measures to lower that risk. Had the employer in Ikwezi assessed the risk of sexual harassment taking place in the particular circumstances (a senior male employee working after hours with a younger female in a junior position), measures including training for employees on the prohibition of sexual harassment could have been taken to avoid the incident.

A factor that contributed to the victim's damages in Ikwezi was the employer's ignorance of the fact that it had a common-law duty to ensure the physical and psychological safety of the victim during the entire employment relationship and not only up to the disciplinary hearing. Had the employer been alert to this duty, the victim would not have suffered the second trauma of having to continue working with her harasser, culminating in her having to resign. The Municipality conceded that they had failed in their duty to ensure the psychological safety of the employee before (but not after) the hearing. It is disappointing that the court did not point out that the employer could, in terms of the common law, be held directly (and not only vicariously) liable for failing to protect the employee's psychological safety during the whole period of employment. This would have sent a strong message to employers that if the harasser is not dismissed after the disciplinary hearing, the employer still has a duty to ensure the psychological safety of the victim. This could entail taking measures to ensure that there is no contact between the victim and the harasser.

Damages to the victim in Ikwezi could further possibly have been avoided had the Municipality referred the sanction (short of dismissal) for review to the Labour Court in terms of section 158(1)(h) of the LRA. The Municipality was unfortunately wrongly advised by their legal advisor, that there was nothing that they could do about the unsatisfactory sanction. The High Court in Ikwezi pointed out that the requirements for review to the Labour Court would have been satisfied in Ikwezi, since a municipality is an organ of state, and further that the inappropriate sanction in this case was unreasonable and irrational and thus constituted a reason "admissible in law", which is required for referral for review in terms of this section.

The procedure of referring an unsatisfactory decision of a chairperson of a disciplinary hearing for review is available only to organs of state; thus, private employers cannot make use of this procedure. They are left with a choice between a second hearing and a unilateral decision to dismiss the employee. These measures are arguably also available to organs of state which for some reason cannot refer the decision of the chairperson for review in terms of the LRA. In BMW fairness was laid down as a requirement for a second hearing. The court did remark that a second hearing would usually be possible only in exceptional circumstances and that a prohibition on a second hearing in the disciplinary code could be an obstacle.

Regarding a unilateral change to the sanction, this was until recently held to be invalid if the disciplinary hearing did not make provision for such a change. However, in Kruger CC, a case of gross racist abuse, the Constitutional Court ruled that the CCMA's reinstatement of an employee

who had been dismissed by a unilateral decision of management was a decision that no reasonable decision-maker would take. No guidance was provided on the question of whether an employer has the power to make such a unilateral change if the disciplinary code excludes this possibility. It appears that the Constitutional Court found that the unilateral decision of the employer was substantively fair. However, it found that the dismissal was procedurally unfair because Kruger had not been heard before the decision was taken.

In summary, in Ikwezi both the human and financial cost of the harassment could have been prevented had the Municipality trained employees on the content of the Code of Good Practice on the Handling of Sexual Harassment in the Workplace, protected the victim even after the disciplinary hearing, and referred the case to the Labour Court for review. They could also have held a second hearing, although in the light of BMW this would probably not be regarded as fair, since no new evidence came to light after the first hearing. In the light of Kruger CC, the municipality could also have gone the route of a unilateral change to the sanction, although the Kruger CC case was decided after Ikwezi.

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List of Abbreviations