Labour Court: C259/ 00 Bongiwe Ntsabo v Real Security cc: Judge Pillay
Source: CCMAil, November 2003 www.ccma.org.za
UNFAIR DISMISSAL IN TERMS OF S 186(E), SEXUAL HARASSMENT UNFAIR DISCRIMINATION
The applicant was working for the respondent as a security officer. Her supervisor sexually harassed her on a regular basis. She reported the incidences to the supervisor on numerous occasions and the respondent did not take any action. Her brother also complained on her behalf and again nothing was done. This eventually led to the applicant's resignation.
The applicant referred the matter to the Labour Court, claiming damages for the following:
1 (a) R45 000.00: patrimonial damages in terms of s6 (1) to 6 (3) of the Employment Equity Act (EEA) 55 of 1998 in respect of future medical costs and for psychological counselling;
(b) R100 000,00: non-patrimonial damages in respect of contumelia, humiliation, impairment of dignity and injuria.
2. Compensation in terms of section 187 (1) (f); Section 60 of the Employment Equity Act (EEA)
The respondent argued that the offence had never occurred. It further argued that, if it was found that the alleged harassment had occurred, nothing could have been done to prevent further harassment.
The judge determined that the argument that the respondent was never informed of the harassment raised the following aspect:
* That s60 of the EEA requires an employee who has been infringed to report the matter immediately.
Note: The fact remained that the employer was informed of the harassment.
Further note: The requirement that the matter should have been reported immediately could not be directly interpreted as reporting the matter within minutes.
Held: The failure of the applicant to notify the respondent immediately could not be considered as being a non-compliance of s60 of the EEA. However, the failure of the respondent to attend to the matter within reasonable time did result in legal consequences.
2.1 SECTION 187(F) OF THE LRA
The judge held that the applicant's dispute could not have been referred under this section, as this section would be applicable to dismissals that are related to discrimination.
Section 186(1) (e) of the LRA stipulates the following:
"(e) an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee,". By citing, Pretoria Society for the Care of the Retarded v Loots (1997) 18 ILJ 981 (LAC), CEPPWAWU and Another v Glass Aluminium cc (2002) 5 BLLR399 (LAC),and Kruger v CCMA and Another (2002) 1 BLLR, the judge argued that the conduct of the employer should be so intolerable that the employee is unable to complete its core duties.
Note: The applicant informed the employer of the initial harassment in December. She only resigned six weeks thereafter; this was only after the situation had escalated.
Further note: Because the respondent had not taken any action against the supervisor, the applicant found the situation intolerable and resigned.
Held: The respondent should have foreseen the development of a hostile and intolerable working environment. The respondent also failed to explain this to the Court and chose to deny that the harassment took place.
Further held: The judge argued that the applicant's actions, therefore, fell within what is envisaged by s186 (e) of the LRA and ordered maximum compensation prescribed by s194 (1) of the LRA.
Source CCMAil, November 2003, www.ccma.org.za
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