Labour Court Dismisses Claims Of Automatically Unfair Dismissal And Quid Pro Quo Sexual Harassment By A Contractor

The Labour Court recently dismissed a claim of automatically unfair dismissal brought by Ms Lauren Masimla against Pioneer Fishing (Pty) Ltd and related entities within the African Pioneer Group in the matter of Masimla v Pioneer Fishing (Pty) Ltd and Others.

Ms Masimla alleged that her dismissal was motivated by quid pro quo sexual harassment and thus constituted an automatically unfair dismissal under section 187(1)(f) of the Labour Relations Act 66 of 1995 ("the LRA"). She also brought a claim of unfair discrimination under section 10(6)(h) of the Employment Equity Act 55 of 1998 ("the EEA"). The Court found that Ms Masimla failed to adduce evidence of sexual harassment or to establish a causal link between any alleged discrimination and her dismissal.

Ms Masimla was employed by Pioneer Fishing from March 2015 as Human Resources Manager. From approximately 2020, she also reported on a dotted line basis to Mr Pieter Greeff, an independent contractor appointed as Group Chief Operating Officer of African Pioneer Marine. During 2020, Ms Masimla was placed in the position of acting Group HR Manager across several entities within the Pioneer group, although no formal written appointment was ever made.

During 2020, Ms Masimla and Mr Greeff entered into a consensual romantic relationship, which coincided with her acting role and her reporting to him. The relationship ended on 19 April 2022, at Mr Greeff's initiative. Ms Masimla alleged that, following the breakup, Mr Greeff blocked her promotion, withdrew the Group HR Manager role, and behaved in a hostile and aggressive manner towards her. She contended that these actions constituted quid pro quo sexual harassment and that her eventual dismissal on 14 June 2023 was the culmination of Mr Greeff's alleged vindictiveness, effected through the employer's disciplinary process.

The disciplinary proceedings followed an investigation by an independent external investigator into several complaints made against Ms Masimla, who recommended that disciplinary action be taken against her. A disciplinary hearing took place over eight days, after which the chairperson found Ms Masimla guilty on certain allegations and recommended dismissal, which the employer accepted.

Key findings

Jurisdiction: Employer liability for conduct of an independent contractor under the EEA

The Court was required to consider whether the employer could be held liable under section 60 of the EEA for alleged harassment committed by Mr Greeff, who was an independent contractor rather than an employee.

Section 60 creates a statutory form of vicarious liability and provides a mechanism for holding employers liable for the discriminatory conduct of their employees. Section 60 makes no mention of liability on the part of an employer for the conduct of non-employees.

Ms Masimla argued that the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace ("the Harassment Code") has expanded the category of persons whose conduct an employer could be held liable for in terms of section 60 by expressly stating that the perpetrators of harassment may include "contractors and others having dealing with a business".

The Court rejected this argument. It held that, despite the wider range of workplace participants whose conduct is covered by the Harassment Code, it is a guideline and it cannot indirectly create new forms of liability that are not expressly provided for in terms of section 60 of the EEA. Extending an employer’s liability under section 60 to independent contractors would require a legislative amendment. Accordingly, the Court found it lacked jurisdiction to hear the unfair discrimination claim under the EEA.

As appears from what is set out below, on the facts as pleaded in this matter Ms Masimla could in any event not prove that Mr Greef had engaged in quid pro quo harassment. But assuming that she could prove such harassment, an interesting point of law to consider is whether she may have succeeded with a claim against the employer under the common law doctrine of vicarious liability or with a claim for direct liability against the employer.

Under common law vicarious liability, an employer may be held liable for wrongful acts or omissions of employees committed ‘within the course and scope of’ employment or whilst ‘engaged in the affairs’ of the employer. Courts have awarded damages against employers for sexual harassment on this basis, without relying on section 60 of the EEA. Liability has even been imposed in ‘deviation’ cases, where the employee was not wholly engaged in the employer’s affairs. However, despite this expanded scope, vicarious liability appears to extend only to employees, not independent contractors. Accordingly, Pioneer Fishing would likely not have been vicariously liable for Mr Greef’s alleged conduct.

Alternatively, Ms Masimla could potentially have pursued a direct liability claim against Pioneer Fishing, provided she could demonstrate that they failed to provide, so far as reasonably practicable, a safe working environment and/or to take reasonable steps to protect employees from the physical and psychological harm arising from sexual harassment.

Automatically unfair dismissal: No evidence of sexual harassment

Notwithstanding the jurisdictional finding, the Court permitted the automatically unfair dismissal claim to proceed on the basis that Pioneer Fishing could potentially be held directly liable if it had made common cause with Mr Greeff and dismissed Ms Masimla in fulfilment of an impermissible intention on his part.

On the merits, however, the Court found that there was a complete absence of any allegations of sexual harassment by Mr Greeff, let alone of a quid pro quo nature. The Court distinguished the present case from established authorities such as Gaga v Anglo Platinum Ltd and Makoti v Jesuit Refugee Service South Africa, in which there had been unmistakable evidence of repeated, unsolicited sexual advances and a direct link between those advances and adverse employment consequences. In the present case, it was Mr Greeff who ended the consensual relationship, and the WhatsApp correspondence following the breakup did not reveal any communication that could be construed as vindictive conduct linked to the end of the relationship.

The Court held that Ms Masimla failed to discharge even the initial evidentiary burden of raising a credible possibility that her dismissal was for an impermissible reason, as required for an automatically unfair dismissal claim to succeed by the authorities of Kroukam v SA AirLink (Pty) Ltd and SA Chemical Workers Union v Afrox Ltd. Because no prima facie case of sexual harassment had been made out, it followed that the dismissal could not have been caused by resistance to such behaviour.

Alternative unfair dismissal claim not entertained

The Court also declined to exercise its discretion under section 158(2)(b) of the LRA to hear the alternative claim of an ordinary unfair dismissal for misconduct, holding that it would not be expedient to collapse both proceedings into one. The unfair dismissal claim was therefore to be dealt with separately, if at all.

Practical Implications for Employers

Employers do have an obligation to take steps to prevent and eliminate harassment even on the part of third parties like independent contractors and customers. However, the Court has confirmed that section 60 of the EEA does not extend employer vicarious liability to the discriminatory conduct of independent contractors. The Harassment Code's broader references to "contractors and others" do not, in and of themselves, create new statutory liability. This is a significant clarification for employers who engage independent contractors in senior operational roles. However, employers should not lose sight of the potential for being held directly liable for instances of sexual harassment committed by third parties if they fail to comply with their duties to provide a safe working environment and take reasonable steps to prevent harm to their employees. 

The judgment underscores that not every instance of hostile or aggressive workplace conduct following the end of a consensual romantic relationship will constitute sexual harassment, much less quid pro quo sexual harassment. To establish quid pro quo harassment, there must be evidence that employment circumstances were influenced or attempted to be influenced by coercion to surrender to sexual advances.

Although the claim was ultimately dismissed, the factual background highlights the importance of ensuring that grievance and disciplinary processes are demonstrably independent and fair. The employer's decision to appoint an independent external investigator and to act on his recommendations was significant to the Court's assessment.