Employer liability when sex pests treat the workplace as a lonely hearts club: lessons to be learnt from liberty group limited v m (2017) 38 ILJ 1318 (LAC)
Author Karmini Pillay
Affiliations: Senior lecturer, University of Witwatersrand, B Soc Sci LLB (UNP) LLM (UKZN)
Source: South African Mercantile Law Journal, Volume 31 Issue 2, 2019, p. 201 – 238
In this contribution, I examine the scope of the employer’s role and liability in cases of sexual harassment. This is done in the context of the Liberty case, using this LAC judgment to flag fundamental lessons for other employers. These are lessons that employers must heed or, as recent events show, suffer substantial damage to their brand and business. First, I state the facts of the case and the legal issues that were dealt with by the LAC. Second, I briefly set out the statement of the case. Third, I examine the issue of credibility of the complainant in proving sexual harassment. Fourth, I analyse the legal approach to a complainant who does not report the alleged sexual harassment immediately, and whether any adverse inferences on the credibility of her version can be drawn from this delay. Fifth, I consider the LAC’s approach to determining the scope of the employer’s liability in terms of section 60 of the Employment Equity Act 55 of 1998. Lastly, I consider the general approach adopted by the LAC in its judgment.