Summary
Shoprite filed this appeal before the Labour court, disputing an arbitration finding that the company violated section 60 of the EEA, unfairly suspended a former employee of Shoprite, and constructively dismissed her from work. Central to the EEA dispute was whether their employee, JL, was sexually harassed by her general manager, KB, and whether Shoprite did everything “reasonably practicable to ensure that the employee would not act in contravention of the act.” Initially, JL bore the onus of making a prima facie case of sexual harassment as a form of unfair discrimination as defined by section 6(3) of the EEA. Once JL met that burden, the onus shifted to Shoprite to show that the discrimination either did not take place, or was rational or reasonable, per section 11 of the EEA.
The initial claim of sexual harassment first arose from JL following an inappropriate interaction with KB where, while in the workplace, KB slapped JL on her left butt cheek and laughed. Per §3 of the EEA, the Court refers to the Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace. The code defines sexual harassment as: “unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equality in the workplace …” Additionally, the code outlines four factors to establish sexual harassment: (1) harassment on a prohibited ground, such as gender; (2) unwelcome conduct; (3) the nature and extent of the unwelcome conduct; and (4) the impact of the conduct. Once establishing that sexual harassment can give rise to a claim under the EEA, the Court turned to the question of whether the arbitrator’s findings supported JL’s version of events. Relying on former precedent, the Court reiterated that to reach a conclusion on irreconcilable versions of events, the Court must depend on the credibility of the various witnesses, their reliability, and the probabilities. Reviewing the totality of the evidence, the Court held the arbitrator’s findings adopting JL’s version of events as reasonable. Thus, the Court upheld the finding that JL was sexually harassed.
In considering the further question as to whether the arbitrator was correct to hold Shoprite liable under §60 of the EEA, the Labour Court cites to a broad interpretation of the section, finding that liability arises where the employer fails to take all necessary steps to eliminate discrimination and fails to do everything reasonable to prevent continued discrimination. Relevant factors to sexual harassment claims include whether the employer was made aware of the incident, whether they failed to consult all relevant parties, and whether they failed to ensure that their employees did not act in contravention of the EEA. The Court held that (1) Shoprite failed to adequately conduct an investigation in a fair manner; (2) management tarnished the neutrality of the investigation, and; (3) the investigation conducted did not do what was reasonably necessary to address the sexual harassment complaint; the Court held that the arbitrator’s findings of liability should stand.
However, the Court lowered the awarded compensation due to comparing the matter to awards in other cases and in taking into account Shoprite’s argument that the sexual harassment was a single incident, and it had not been dilatory in taking action to address the issue.
The Court also considered the decision to suspend JL on a precautionary basis. The Court agreed that the suspension of JL was substantively unfair, and observed that KB was not suspended. As for the claim of constructive dismissal, the Court did not support the arbitrator’s reasoning that JL’s guilt was predetermined and therefore a resignation prior to the final disciplinary proceeding could not substantiate a claim of constructive dismissal.
