Recent case law has shown that the South African courts are prepared to hold employers liable for conduct amounting to sexual harassment perpetrated by their employees. The basis for such liability arises from two sources. The first is the common law duty imposed on employers to create and maintain a safe working environment free from the danger of being sexually harassed. The second arises from the provisions of section 60 of the Employment Equity Act, 1998 ("EEA") read with the Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace.

Although a plain reading of section 60 of the EEA may indicate that an employer may adopt a reactive approach in relation to sexual harassment, the courts have, in various cases, made it clear that section 60 of the EEA in fact requires employers to be proactive in eliminating conduct that is in contravention of the EEA.

In relation to sexual harassment in particular, the Labour Court in Piliso v Old Mutual Life Assurance Co (SA) Limited and Othersheld that:

"[35]...Sexual harassment is equally clearly regarded as a form of unfair discrimination. There is equally no doubt that employers are required to take steps in advance, and to be proactive, in the elimination and prevention of unfair discrimination. It may not simply sit back and wait to be informed of its having happened before doing something. The absence of effort in anticipation of discrimination may well found liability." (our emphasis added).

The above quotation shows that liability in terms of section 60 can not only be based on a finding that the employer did not take appropriate and sufficient steps after an allegation of sexual harassment has been reported to it, but liability can also arise if the employer did not take preventative action in relation to such conduct.

In relation to sexual harassment, preventative action has generally been understood as having a sexual harassment policy and/or providing training in relation to the issue, among other things. A question that has recently arisen in this context is whether an employer can refuse to employ a job applicant who has been found guilty of, and dismissed for, sexual harassment in their previous employment, assuming that the job applicant disclosed this fact to the prospective employer?

The only statute that an unsuccessful job applicant can rely on is the EEA, as it creates a potential pre-employment liability for employers. This means that the job applicant will have to allege that the refusal to employ him constitutes unfair discrimination as defined in the EEA. This further means that the job applicant will have to show that the decision not to appoint him or her not only constituted differentiation between him and other job applicants but also that this differentiation was on one of the grounds mentioned in section 6(1) of the EEA. Only then will the differentiation amount to discrimination. These grounds include a range of specifically listed grounds such as sex, race, and gender etc. as well as the more vaguely formulated "arbitrary ground." In the absence of being able to show that differentiation took place on a listed ground (which seems improbable), the job applicant would have to argue that the differentiation was based on an arbitrary ground and therefore constituted discrimination. The Labour Court, in Sethole and others v Dr Kenneth Kaunda District Municipality recently confirmed that for differentiation to constitute discrimination based on an unlisted or arbitrary ground, the differentiation must be based on attributes and characteristics that have the potential to impair fundamental human dignity of a person as a human being or to affect them adversely in a comparable serious manner. In Stojce v University of KwaZulu-Natal and another the court held that not every attribute or characteristic qualifies for protection against discrimination but the element of injustice arising from oppression, exploitation, marginalisation, powerlessness, cultural imperialism, violence and harm endured by particular groups or the worth and value of their attributes are qualifying characteristics that distinguish mere differentiation from unfair discrimination.

It seems unlikely that a job applicant would, in most situations, be able to establish an arbitrary ground. Even if the job applicant was able to persuade an arbitrator or court that discrimination on a listed or arbitrary ground, the question would still be whether the discrimination was unfair? Was it unfair for the employer to refuse to appoint the job applicant because of the fact that he or she was dismissed for sexually harassing another person? The answer to this question is that it would be fair if this fact was relevant. Would the fact that he or she sexually harassed somebody impair his or her ability to do the job? Perhaps, more importantly, would the appointment lead to the employer potentially failing to provide a safe working environment? Failure to do so could potentially expose the employer to delictual liability or, by not being pro-active as envisaged in the Piliso decision referred to above, expose itself to liability in terms of section 60 of the EEA? This, of course, is a factual question and would depend on the nature of the job and the way and circumstances in which the employee would have to perform his or her duties. The question then becomes: would a sexual harassment record be relevant? It may be that a sexual harassment record will not always be relevant to every job although the duty to ensure a safe working environment free from sexual harassment would be a far-reaching one. There may also be more general reasons that justify non-employment, for example, that the job applicant's conduct was contrary to the values that the employer espouses.

It seems then that, in these circumstances, a job applicant will have significant hurdles to overcome if he or she wishes to challenge a decision not to employ him or her.

What about the situation in which the job applicant fails to disclose that in his or her previous employment, he or she was found guilty of and dismissed for sexual harassment and when the non-disclosure comes to light, the job applicant claims that he or she did not disclose that fact because he or she denies having sexually harassed anyone and is therefore challenging his dismissal and seeking compensation in that regard? This is a clear case of non-disclosure/misrepresentation that may justify dismissal. The Labour Court in MEC: Education, Gauteng v Dr NM Mgijima and Others was faced with a similar case, wherein an employee, as a job applicant, failed to disclose during her interview that she was on suspension and there were pending disciplinary charges against her. An express invitation for the employee to make the disclosure was made during the interview, but the employee did not seize the opportunity. Van Niekerk J found such a non-disclosure deprived the Gauteng Department of Education an opportunity to assess the employee's suitability for employment and make an informed decision in relation her suspension and the pending charges on the contemplated employment relationship. Also, the fact that the post applied for was a senior post which required unimpeachable honesty and integrity, played a role in the court finding the employee's dismissal fair.

Reviewed by Peter le Roux, an executive consultant in ENSafrica's employment department.

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