In Masimla v Pioneer Fishing (Pty) Ltd and Others, the Labour Court was required to determine a referral related to an unfair discrimination claim under section 10(6)(h) of the Employment Equity Act, 1998 (EEA). The case specifically considered quid pro quo harassment, and an automatically unfair dismissal claim pertaining to discrimination in terms of section 187(1)(f) of the Labour Relations Act, 1995 (LRA). As an alternative claim, the plaintiff claimed that her dismissal was substantively and procedurally unfair.  

In limine points

At the outset, the Labour Court was required to make a ruling whether it would entertain the plaintiff’s alternative claim of unfair dismissal for misconduct and whether Pioneer Fishing could be held liable for sexual harassment of a quid pro quo nature. The sexual harassment was allegedly suffered by the plaintiff at the hands of Mr P Greeff (Mr Greeff) who was an independent contractor contracted to act as Pioneer Group’s chief operating officer.

It was common cause that:

• the plaintiff and Mr Greef had a consensual sexual relationship which eventually came to an end;
• the plaintiff alleged that in retaliation, Mr Greef blocked her promotion, and among other things, caused her removal from an acting position as group HR manager;
• the plaintiff alleged that Mr Greef’s conduct constituted sexual harassment and unfair discrimination under the EEA;
• the plaintiff was later dismissed and alleged that the dismissal was instigated by Mr Greef and that the employer had given effect to Mr Greef’s motives by dismissing her.

The Court found that section 60 of the EEA is intended to provide a mechanism to hold an employer vicariously liable for the unfair discriminatory conduct of an employee, unless the employer can show that it took the necessary steps to eliminate such conduct. This was limited to employees and did not extend to other natural persons.

The plaintiff argued that the category of persons listed under section 60 has been expanded by the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (Harassment Code) to include, among others, ‘suppliers, contractors and others having dealing with a business’.

The Court held that notwithstanding the wider range of workplace participants whose conduct is covered by the Harassment Code, it was not persuaded that the wording of the Harassment Code extends the scope of employer liability in terms of section 60(3) of the EEA to include liability for the conduct of non-employees in the workplace. The Labour Court also highlighted that clause 7.3 of the Harassment Code makes it clear that not every act of discrimination in the workplace will necessarily fall within the ambit of the EEA but may fall within the ambit of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000. Moreover, even though in interpreting the application of the EEA, one must take into account a code of good practice, the Harassment Code, which is a guideline, cannot, in and of itself, indirectly create new forms of liability. That would require an amendment of section 60 of the EEA.

The Court concluded that Pioneer Fishing could not be held responsible under section 60 of the EEA for alleged acts of harassment committed by Mr Greeff, who was an independent contractor.

The Court did, however, go on to consider the plaintiff’s automatically unfair dismissal claim. It held that Pioneer Fishing could be held directly liable as the employer if the plaintiff could prove that the employer made common cause with Mr Greef and dismissed her in fulfilment of an intention on his part to have her dismissed on account of quid pro quo sexual harassment.

Regarding the plaintiff’s alternative claim of an unfair dismissal for misconduct, the Court held that it was not satisfied that it would be expedient to collapse both proceedings into one and the enquiry into the fairness of the plaintiff’s dismissal should be conducted separately from the hearing of her claim of automatically unfair dismissal.

Automatically unfair dismissal claim

The plaintiff’s automatically unfair dismissal claim was brought under section 187(1)(f) of the LRA because it related to unfair discrimination on the grounds of quid pro quo sexual harassment.

The plaintiff’s case was that the termination of the consensual romantic relationship with Mr Greeff marked a turning point in her treatment in the workplace. She contended that Mr Greeff’s conduct towards her became hostile and punitive; that the withdrawal of the group HR manager role was the first concrete manifestation of this change; and that her subsequent attempts to raise concerns through internal processes triggered retaliation.

In her view, the solicitation of employee statements by Mr Greef, the initiation of an investigation against her, and the subsequent disciplinary proceedings were vindictive steps flowing directly from the breakdown of the romantic relationship between her and Mr Greef, as well as her decision to report Mr Greeff’s conduct to the CEO. She maintained that, but for these events, no disciplinary hearing process would have been instituted against her and she would not have been dismissed.

Pioneer Fishing’s case was, in summary, based on the following three points:

• a denial that any sexual harassment occurred as no evidence was provided in this regard by the plaintiff;
• the absence of a causal link between the alleged conduct and the plaintiff’s dismissal. In this regard Pioneer Fishing contended that the dismissal was a result of independent complaints lodged against the plaintiff by multiple employees, which were investigated by an independent investigator who recommended that disciplinary action be taken, and the decision to discipline her was taken by the CEO; and
• the denial of any complicit conduct in giving effect to Mr Greefff’s alleged desire to victimise the plaintiff on account of their relationship having ended.

In its analysis, the Court quoted clause 5.2.6.2 of the Harassment Code which provides that: ‘Quid pro quo harassment occurs where a person such as an owner, employer, supervisor, member of management or co-employee, influences or attempts to influence an employee’s employment circumstances (for example engagement, promotion, training, discipline, dismissal, salary increments or other benefits) by coercing or attempting to coerce an employee to surrender to sexual advances.’

In order for the plaintiff to succeed in her claim of automatically unfair dismissal she had to produce sufficient evidence to raise a credible possibility that an automatically unfair dismissal had taken place, that is, that the employer had subjected her to quid pro quo harassment, and that this was the proximate cause of her dismissal.

The plaintiff’s version was that the main, dominant and proximate cause of her dismissal was predicated on the fact that she initiated grievance proceedings against Mr Greeff regarding his conduct towards her. Had she not lodged a grievance concerning Mr Greeff, Pioneer Fishing would not have instituted disciplinary proceedings against her. She argued that the disciplinary action against her was punishment as a result of her having raised concerns about Mr Greef’s hostile conduct towards her which arose after the romantic relationship between the two of them ended.

Pioneer Fishing argued that the plaintiff’s case had two fundamental issues:

• the plaintiff had accepted that at no stage had Mr Greef subjected her to any sexual harassment; and
• even if it assumed, albeit incorrectly, that the company made common cause with Mr Greeff against her, there was no evidence that it had done so in support of conduct amounting to sexual harassment. Furthermore, she had agreed that it was not unreasonable for the CEO to have instituted disciplinary action against her following the investigator’s report.

The Court found that there were no allegations of sexual harassment made by the plaintiff against Mr Greef let alone of a quid pro quo nature. The facts of this case could hardly be further removed from the type of quid pro quo sexual harassment cases exemplified by the Gaga and Makoti cases the plaintiff referred to.

A striking feature of this case was that it was Mr Greeff who initiated the end of the relationship and there were later communications from him trying to curtail communications after hours. There was no evidence that he then sought to revive the relationship at a later stage, but was rebuffed by the plaintiff, leading to him vindictively accusing her of misconduct as an act of retribution for fobbing him off.

The Labour Court concluded that the plaintiff did not make out even a prima facie case of sexual harassment and the claim was dismissed.

Key takeaways

The case illustrates that while the Harassment Code must be considered in matters relating to section 60 of the EEA, the application thereof cannot be interpreted as extending the scope of the EEA. Accordingly, an employer’s vicarious liability under section 60 of the EEA is limited to employees and not those persons listed in the Harassment Code.  

In respect of automatically unfair dismissals in terms of section 187(1)(f) of the LRA, it is important that the employee is able to establish a causal link between the dismissal and the employer’s unfair discrimination against them, whether directly or indirectly, and this can also apply in respect of conduct perpetrated by contractors.

Despite the above, employers should be aware that employees may choose to bring a delictual claim in circumstances where the alleged perpetrator of harassment is an independent contractor or any other third party who is not employed by the employer. It is therefore important for employers to take all reasonable steps to ensure that employees are protected against all forms of harassment in the workplace, including harassment that may be perpetrated by third parties.

Written by Sibusiso Dube, Partner, and Tony Misago, Associate, Bowmans