If you thought the most dangerous thing in a stationery cupboard was a misplaced staple gun, think again. In a recent Labour Court matter, the court confirmed that a single off-colour joke about a packet of fingerettes being compared to the size of a male employee’s… well, you know… was enough to ground a finding of sexual harassment. It is also a useful reminder that spotting harassment, dealing with it properly, and preventing it in the first place are critical. A failure to do so can lead to an employer being held vicariously liable for the harassment and out of pocket.

The facts, briefly, are as follows. The employer’s warehouse manager was rifling through a stationery cupboard with her female colleagues when she found a packet of fingerettes, called over a male subordinate, and joked that the items were as big as his “mthondo”. Everyone laughed – including the employee, initially. Later that day, he told his manager that her comment had upset him. She apologised immediately, and did so again more than once. The employee did not come to work the next day, still dealing with what she had said.

The employer did not ignore what had happened. It treated the incident as a grievance, convened a grievance meeting before an independent chairperson, secured a further apology from the manager, and, on the chairperson’s recommendation, rolled out training to staff on appropriate workplace conduct. Job done? Not quite. Less than two weeks later, the employee referred a dispute to the CCMA alleging sexually harassment.

The commissioner agreed, found the employer vicariously liable, and awarded him R100 000 (roughly 18 months’ salary), together with an order that the employer provide harassment training to its workforce. The employer appealed all three findings.

Was this really sexual harassment?

The Court’s answer: yes. Applying the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, it held that a remark referring directly to an employee’s genitalia is inherently sexual, regardless of intent. The remark was unwanted, and the fact that it was once-off joke did not save it: a single incident meets the threshold where it is sufficiently serious, and seriousness here was amplified by the power imbalance between manager and subordinate, and the audience who laughed along. Being mocked in front of colleagues about an intimate attribute, by his supervisor, was sufficient to impair his dignity.

Was the employer liable for what its manager had done?

While the Court accepted that the employer was aware of the complaint and had taken steps to respond to it, it found those steps to be inadequate. During the grievance process, the employee requested that disciplinary action be taken against his manager. However, that request was not recorded, and there was no evidence that the employer considered or engaged with it.

The Court further took issue with the employer for treating the sexual harassment complaint as an ordinary grievance. Sexual harassment may warrant disciplinary intervention. It found that the employer failed to appreciate the seriousness of the allegations and to respond in a manner commensurate with their gravity. Consequently, the Court held that the employer had failed to comply with section 60(2) of the Employment Equity Act, which requires an employer to consult the relevant parties and take the necessary steps to eliminate the alleged conduct and ensure compliance with the Act.

Nor could the employer rely on the section 60(4) defence in the Act, being that it had done all that was reasonably practicable to prevent the harassment, since there was no evidence that, before the incident, the employer had implemented a harassment policy, trained staff, or created proper reporting channels. Vicarious liability thus followed for the employer.

Was the R100 000 award fair?

Here, the employer found some relief. The Court held that R100 000 – roughly eighteen months’ salary – for a single remark met the same day with a genuine apology, was excessive. Compensation for injury to dignity, must neither trivialise the wrong nor shock the conscience. Weighing the isolated nature of the incident, the swift apology, and the absence of lasting harm, the Court substituted an award of R25 000, about four and a half months’ salary.

Takeaway

The lesson here is less about the outcome than the gap between good intentions and adequate process. First, harassment policies and training must be proactive and not reactive. They may prevent legal action in the future, and provide a suitable defence to any such claims. Second, never underestimate a “one-off” or what may seem to be “a bad joke”: a single incident can invite liability. Third, always consult properly with the relevant parties. This includes asking the complainant what they want and engaging with the answer. One cannot assume an apology closes the file.

Written by Sandro Milo, Partner; Kyle-Terry Lamb, Partner; and Robyn-Leigh Lawrence, CA; Eversheds Sutherland