Sexual Harassment: Equal Protection For Male Employees And The Inadequacy Of Informal Resolution

The Labour Court has delivered a notable judgment in Easybranch (Pty) Ltd v Sibiya, which is fairly novel insofar as it involves a male employee successfully bringing a claim of sexual harassment against a female superior.

In the overwhelming majority of reported harassment cases, it is a female employee who is the complainant and a male colleague or manager who is the alleged perpetrator. This judgment demonstrates, in no uncertain terms, that the protections against sexual harassment in the Employment Equity Act No. 55 of 1998 ("EEA") are entirely gender-neutral, male employees are equally and fully protected against harassment perpetrated by female colleagues. The judgment also reinforces the obligation on employers to treat complaints of sexual harassment with the gravity they deserve and not to resort to informal resolution mechanisms that are insufficient in the circumstances.

The facts

On 10 July 2024, Ms Angela Evertse-Brown, the employer's warehouse manager, made a joke comparing the size of fingerettes (small rubber finger covers) to the size of her male subordinate's penis, in the presence of several female colleagues. The employees present, including Ms Evertse-Brown, laughed.

The male employee (the "Complainant") expressed his dissatisfaction directly to Ms Evertse-Brown on the same day for which she immediately and unreservedly apologised. Consequently, the Complainant remained absent from work the following day.

The employer convened a grievance meeting presided over by an independent chairperson to attempt to resolve the matter. During the meeting, Ms Evertse-Brown apologised again, acknowledged that she had overstepped the mark and undertook not to repeat her conduct. The chairperson made three recommendations, including that the company send a general message to all employees regarding appropriate office behaviour and that it establishes an unbiased forum for grievance submissions.

Critically, the Complainant was not satisfied with this outcome. He had wanted the employer to take disciplinary action against Ms Evertse-Brown. Less than two weeks after the grievance meeting, he referred an unfair discrimination claim to the CCMA. The CCMA found that the Complainant had been unfairly discriminated against as a result of the harassment and ordered the employer to pay him compensation in the amount of ZAR100 000. 

The Court's findings

Sexual harassment confirmed

The Court upheld the CCMA arbitrator's finding that the Complainant had been sexually harassed and was therefore subjected to unfair discrimination in terms of section 6(3) of the EEA. In reaching this conclusion, the Court applied the definition of sexual harassment as set out in the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace ("the Code"):

1. The conduct was unwanted: The employer correctly conceded this element. The Complainant's immediate reaction, expressing dissatisfaction, absenting himself from work, and pursuing the matter, demonstrated unequivocally that the conduct was unwelcome.
2. The conduct was of a sexual nature: The Court rejected the employer's argument that the joke was not sexual in nature. The remark related directly to the Complainant's genitalia and fell squarely within clause 5.2.5.6 of the Code, which provides that verbal conduct in the form of sex-related jokes or insults may constitute sexual harassment. The Court held that a reference to a male employee's private parts is "inherently sexual in nature regardless of the context in which it was uttered or the intention with which it was made."
3. The conduct impaired the Complainant's dignity: The joke was made by a superior in the presence of multiple female colleagues who laughed, compounding the indignity. The Court found that this reduced the Complainant's dignity as an adult male employee and subjected him to ridicule before his peers. Importantly, the Court held that a hostile working environment needs not be created "in perpetuity", it suffices that the conduct impaired the employee's dignity.

The Court further held that a single incident could constitute sexual harassment if it is sufficiently serious. The context of this incident,a remark about genitalia made by a superior in the presence of colleagues, met that threshold.

Vicarious liability upheld: The inadequacy of informal resolution

Of particular significance to employers is the Court's finding that the employer's response to the complaint was inadequate, rendering it vicariously liable in terms of section 60 of the EEA.

The Court accepted that the employer did take certain steps, it convened a grievance meeting before an independent chairperson, Ms Evertse-Brown apologised, and recommendations were made. However, the Court held that these steps were not sufficient to discharge the employer's obligations under section 60(2) of the EEA.

The Court's reasoning was as follows:

• The employer treated the matter as a mere interpersonal grievance rather than as a complaint of sexual harassment requiring a response commensurate with the seriousness of such a complaint.
• The Complainant's expressed desire for disciplinary action was not reflected in the chairperson's recommendations, and the employer failed to genuinely address his dissatisfaction.
• Relying on the authority of Motsamai v Everite Building Products (Pty) Ltd (2011) 2 BLLR 144 (LAC), the Court held that unless the victim agrees to another form of resolution, the employer should hold a disciplinary hearing against the perpetrator in instances of serious harassment.
• The employer had not, prior to the incident, taken proactive steps such as implementing a sexual harassment policy, providing training on sexual harassment, or creating adequate reporting mechanisms — and accordingly could not rely on the section 60(4) defence.

Compensation reduced

The Court did, however, reduce the compensation awarded from ZAR100 000.00 (approximately eighteen months' salary) to ZAR25 000.00 (approximately four and a half months' salary), finding the original award to be grossly excessive. In reaching this determination, the Court took into account: the single and isolated nature of the incident; the immediate and sincere apology offered by Ms Evertse-Brown; that the employer did take some remedial steps even if insufficient; and that the Complainant did not establish ongoing prejudice beyond the immediate indignity suffered.

Key takeaways for employers

1. Male employees are equally protected, even where the perpetrator is female

This judgment confirms that the EEA's protections are entirely gender neutral. There is nothing in the legislation or the Code that limits harassment claims by reference to the gender of either the complainant or the perpetrator. Employers must treat complaints from male employees with the same seriousness and urgency as any other harassment complaint, and guard against any assumption that such claims are inherently less credible or less likely to succeed.

2. Informal grievance procedures may not suffice for sexual harassment complaints

Convening a grievance meeting,even one chaired independently,might not discharge an employer's obligations under section 60. Where the complaint amounts to serious sexual harassment, a formal disciplinary process against the perpetrator is required unless the victim expressly agrees to an alternative resolution.

3. Proactive prevention is a prerequisite for the section 60(4) defence

Employers who have not implemented a sexual harassment policy, provided regular training, and established accessible reporting mechanisms before an incident occurs will be unable to rely on the statutory defence under section 60(4). These measures must be in place proactively, they cannot be adopted after the fact.

4. The complainant's expressed wishes cannot be ignored

Section 60(2) requires genuine consultation. Where a complainant expressly requests formal disciplinary action and the employer opts for a lesser response without the complainant's agreement, this will weigh heavily against the employer in any subsequent claim.

Conclusion

Easybranch v Sibiya is a clear illustration that sexual harassment protections in our law are not contingent on the gender of the complainant. Male employees are equally entitled to the protection of their dignity in the workplace. Employers must appreciate that where an allegation of sexual harassment arises, regardless of whether it involves a male or female complainant, an informal, conciliatory approach may fall short of the statutory standard. A measured, formal, and victim-centred response is required, failing which vicarious liability may follow.

Organisations may wish to revisit their workplace harassment frameworks to ensure that complaints are addressed promptly, fairly and in accordance with applicable legal requirements. Contact the author below for any assistance.