Sexual Harassment: Legalities and Settlements Q&A
The following question and answer session was conducted at a conference on sexual harassment, spearheaded by Easy Training, as well as the French Embassy and the Embassy of the Kingdom of the Netherlands in South Africa. The legal guidance seen in this article was conducted by legal experts representing Fasken Johannesburg, who have been operating in the legal sphere in Africa for the past 130 years.
There are some legal resources at the end of the page.
A summarised glance at the questions:
- Do victims have to pay their legal fees from their personal funds?
- Are there NGOs that assist victims in legal proceedings and funding?
- Do employers have an obligation to inform employees why a perpetrator was dismissed?
- How can one work against perpetrators reinventing themselves after a settlement?
- Is there a responsibility on the employer to report the perpetrator to be added to the sexual offender’s register?
- Do settlement agreements not perpetrate sexual harassment?
- Does the employer have a moral obligation toward society, to make sure that those who have been found guilty of sexual harassment do not commit these crimes again?
- Can settlements be circumvented?
Let’s jump into the answers to these questions:
Q. If an employee or individual (victim of sexual harassment) is taking a company to court, are they using their personal funds to do that? I understand that some people might be challenged financially, and especially when it comes to funds to tackle corporate and the company that you work for.
A. Unfortunately the employee would need to incur the legal expenses. If they are going to go to the CCMA or Labour Court, the employee will need to fund that litigation themselves.
Q. Are there NGOs that help individuals to take a company to court? Companies do seem to have an endless budget when it comes to legal disputes.
A. There are quite a few organisations that can assist employee parties or victims of sexual harassment:
- The South African Society for Labour Law that provides pro bono services;
- The Legal Resource Centre that does more public interest; and
- The Legal Aid Clinic.
Q. If someone is found guilty of misconduct in a company, such as financial management, for what I understand, there is not necessarily an obligation for the company to tell their employees why the person was dismissed. Is it any difference with sexual assault or sexual harassment, especially when the perpetrator could pose a threat to a future employer? Is there an obligation for an employer to inform employees why someone was dismissed, if it was of a sexual nature?
A. The short answer is: no. The reasons for dismissal must be kept confidential by the employer. This would extend to instances of sexual harassment, because that would relate to the sharing of personal information etc. So, I would say that it would not be different in the case of sexual harassment. The perpetrator, or the alleged, still has rights in terms of confidentiality etc. So, I would say that you would not be allowed to publish the reasons for dismissal, as would be required by the legislative framework.
Q. Perpetrators often reinvent themselves and go into other spaces and do the exact same thing and they perpetuate their behaviour. Perpetrators can reinvent themselves as consultants, so that they don’t appear as employees anywhere on anybody’s books. They work in the sector, they get paid as consultants, and nobody tracks their behaviour. About two years ago, I took over the leadership of an organisation where perpetrators were abusing the system for over a 15 year period.
How do we work against this, if it is unknown to the public that employees or consultants have previously been dismissed for sexual harassment?
A. So, it depends. If somebody is dismissed in a disciplinary enquiry for sexual harassment and it is open knowledge that the person did the deed, the employee has the obligation, I would think, to inform possible employers who are looking for a reference, for example, of what has happened.
It is a different story when there is a settlement agreement, which normally is confidential. But, if the person is ordinarily dismissed, the employee can disclose that the person has been dismissed for harassment. Sometimes there are agreements with these types of cases that it is a ‘hush-hush’ type of affair where the employee, who is alleged to have committed the act, tries to settle.
From a legal perspective, it is a very difficult position for an employer: you want to make it known to future employers so that this conduct does not repeat itself, but you are obligated to adhere to the terms of the settlement agreement, if such exists.
Q. What about the sexual offender’s register? If someone have been found guilty of sexual harassment, is there no responsibility on the employer to report the perpetrator to be added to the register?
A. That would be a way to prevent this from happening – one can report it. The employer would then be duty bound to report it. The question is, whether an employee is duty bound? Under current legislation, they are not. I think it is something for debate – perhaps for one to amend the code of practise for the employer to an obligation to report a perpetrator to the sexual offender’s register.
Another way to try and answer your question is: if there is sexual harassment, it is also a crime under the criminal offense in common law and the current legislation for criminal assault. In that instance, the employer has an obligation to report it to the South African Police Service or other authorities. If it is investigated and the perpetrator in question is convicted, that becomes a public record – they have a criminal conviction. That, to me, is a way to scar a person’s name. I think employees should be doing that, if it is clear that there was sexual assault.
Unfortunately there are no peremptory legal obligations on the employer to report. So, it will be the complainant who would then report it to the authorities. In so far as labour legislation is concerned, there is no obligatory or positive duty for the employer to report. Perhaps the employer may do so voluntarily and perhaps there should be some amendments to the current laws.
Q. Do settlement agreements not perpetrate this unsavoury practice?
A. I think they do. I think what happens is, you have a disciplinary enquiry, and this happens in various types of misconduct, and then the perpetrator would say: “look, I’m prepared to settle”. They want their name cleaned and be able to gain future employment. The employer, on the other hand, may not want to incur the legal expenses. They might dismiss the employee and then the possible liability under section 60 is gone. But, it is easier to sign a settlement agreement, which is ordinarily confidential.
And you’re completely right, it does perpetuate it. So, you have this person that goes back to society and carries on with the conduct, because if they do it once, they can do it again. So, I think it does perpetuate the unsavoury practice of sexual harassment, but the reality is, settlements are in their nature confidential.
If the perpetrator says – “you can just proceed with disciplining me and dismissing me” – in that instance, the employer can disclose that the nature of the dismissal is due to sexual harassment.
Q. The settlement feels like you are putting some kind of worth on someone’s dignity. Is there some form of financial gauge when it comes to settlements? It seems that in one case they settle for less than in another case. Is there some form of gage as to what type of sexual harassment it was and how long it was endured?
A. There is no fixed gauge that we use. Usually we advise the client to look at how long it would take to fight it out with the CCMA or Labour Court, and how much the other party or perpetrator is willing to take.
So, sometimes, as an employee, you bring an amount to the table and say: “I’m willing to settle for 6 month’s salary”, for example. Then the perpetrator might then come and say: “Looking at how much we’re looking at spending on litigation, we are just willing to offer you 3 months or 2 months”. So, it is all about negotiation and give or take. There is no fixed amount to say, when it is sexual harassment or of a physical nature we’re only able to settle for 6 months or for 10 million Rand, and if it is only non-verbal it is only going to be R2000. No, it is about negotiation.
There is a negotiation that goes on between the perpetrator and the employer or the company. And the settlement arises as a consequence of us meeting each other, sometimes halfway, sometimes one party gives in, just to make the matter go away. Most often than not, it is the perpetrator that caves, because they know if you enter a settlement, their name will not be tarnished. Then, when they go and look for employment, no one will know that they have been dismissed for sexual harassment.
Q. Does the employer have a moral obligation toward society, to make sure that those who have been found guilty of sexual harassment do not commit these crimes again?
A. Yes, an employer has the obligation to be honest in their references. Do not say that the contract just ended mutually or it was a mutual separation, unless there is a settlement agreement that prohibits you from disclosing the reason why the employee was dismissed. But, if it is normal dismissal, the employer has an obligation, if they are called as a reference, to disclose what happened and what the risks are with this employee, given on the information at hand. Unfortunately where there is a settlement agreement, the employer cannot disclose that, they have to say that the contract was terminated mutually between the parties.
Q. Is there no way to circumvent settlements?
A. There are ways that we can work around this for employers that would want to prevent perpetrators buying their freedom. Perhaps they can have a policy that reads: if somebody is charged or in a disciplinary hearing for sexual harassment, they are duty bound to then consult with the victim and find out what possible relief that the victim wants. Because maybe the victim would not want a settlement, maybe the victim would not want confidentiality, and that person to go scot-free, maybe the victim wants the person to be dismissed and their name scarred.
A policy can stipulate that, and a company is duty bound to comply with that policy. They cannot then settle, because their policy says otherwise. In law, there is freedom of contracting, but if your policy says otherwise, then the victim can then pursue further legal options.
Let’s say, hypothetically, the employer settles confidentially, but the policy says otherwise, the victim will then be empowered to have a case against the employer for doing so. There are even common law damages. We refer to the cases under section 60. There are cases where you can sue for common law damages, beyond the employment equity act. In that case, the victim can then pursue recourse, to say that the employer did not comply with this policy, resulting in the victim’s name being tarnished and their dignity being impaired, and the employer disregarded it. That is one of the ways to work around it.
We thank those who have contributed to this question and answer session.
It is of utmost importance that employers and employees take note of the information above to ensure that unsavoury practices and unfavourable sexual harassment disputes do not deteriorate the working environment, and that perpetrators are not enabled in the pursuit of a quick-fix to an uncomfortable situation.
As a final thought, investing in sexual harassment champions and compliance training that is targeted, knowledgeable, understandable and relevant might sound like an uphill journey, but it might save the company from battling mountains in the future. The fight against sexual harassment is an ongoing awareness that we have to raise, all the time.
The South African Labour Law Pro Bono Office (SASLAW)
The SASLAW Pro Bono NPC project at the South African Labour Courts serves to deliver a quality advisory service and defined Labour Law legal services to those who otherwise do not have access to justice.
Tel: 011 359 5777
Email (per location)
The Commission for Conciliation, Mediation and Arbitration (CCMA)
The CCMA is a dispute resolution body established in terms of the Labour Relations Act, 66 of 1995 (LRA). It is an independent body, does not belong to and is not controlled by any political party, trade union or business.
Legal Resources Centre (LRC)
The LRC is a democratic, accountable, and transparent society in which equitable and inclusive access to justice, dignity, and human rights are lived realities for all. The LRC has championed and defended the poor, marginalized and vulnerable in pursuit of life, dignity and equality of all.
Tel: +27 11 038 9709
Legal Aid South Africa
Legal Aid South Africa’s role is to provide legal aid to those who cannot afford their own legal representation. This includes poor people and vulnerable groups such as women, children and the rural poor.
Tel: 0800 110 110