Workplace harassment is often discussed through familiar scenarios, but the legal principles protecting employees do not change with gender or hierarchy.
Most reported sexual harassment cases involve a female employee complaining about a male colleague or manager. A recent Labour Court judgment, Easybranch (Pty) Ltd v Sibiya, reverses this pattern: a male employee successfully brought a sexual harassment claim against his female superior. The case offers two clear reminders. First, the law protects all employees equally, whatever their gender. Second, employers must take harassment complaints seriously, and an informal "let's talk it through" approach is often not enough.
The legal framework
The Employment Equity Act 55 of 1998 (the "EEA") prohibits unfair discrimination in the workplace, and section 6(3) states that harassment of an employee is a form of unfair discrimination. The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (the "Code") explains what sexual harassment is. In simple terms, conduct amounts to sexual harassment where it is:
- unwanted;
- of a sexual nature; and
- harmful to the employee's dignity.
Section 60 of the EEA makes an employer legally responsible ("vicariously liable") for harassment by its employees, unless it took the necessary steps to address and prevent it.
What happened
On 10 July 2024, the company's warehouse manager, Ms Evertse-Brown, joked that fingerettes (small rubber finger covers) were the size of a male subordinate's penis. Several female colleagues were present and laughed.
The employee told her that same day that he was unhappy, and she apologised immediately. He stayed away from work the next day. The employer held a grievance meeting before an independent chairperson, where Ms Evertse-Brown apologised again and promised not to repeat her behaviour. The chairperson recommended, among other things, a general message to staff about appropriate conduct and a neutral forum for raising grievances.
The employee was dissatisfied, as he wanted disciplinary action taken against his manager. He referred an unfair discrimination claim to the CCMA, which found in his favour and awarded him R100 000. The employer took the matter to the Labour Court.
The Court's findings
It was sexual harassment. The employer accepted that the conduct was unwanted but argued that the joke was not sexual. The Court disagreed. The Code expressly lists sex-related jokes as verbal sexual harassment, and a reference to a man's private parts is "inherently sexual in nature regardless of the context in which it was uttered or the intention with which it was made." Because the joke came from a superior, in front of colleagues who laughed, it exposed the employee to ridicule and impaired his dignity. The Court also confirmed that a single serious incident is enough; a lasting hostile environment need not be proved.
The employer was liable. Although the employer took some steps, the Court found them inadequate under section 60(2) of the EEA. The employer treated the matter as an ordinary interpersonal grievance rather than a sexual harassment complaint, and ignored the employee's request for disciplinary action. Relying on the Labour Appeal Court's decision in Motsamai v Everite Building Products, the Court held that in serious cases the employer should hold a disciplinary hearing unless the victim agrees to another solution.
Nor could the employer rely on the defence in section 60(4). Before the incident, it had no sexual harassment policy, no training and no proper reporting channels.
The Court reduced the award from R100 000 (about eighteen months' salary) to R25 000 (about four and a half months' salary), finding the original amount grossly excessive. It considered that this was a single incident, that the apology was immediate and sincere, that the employer took some steps (though insufficient), and that the employee showed no ongoing harm.
What this means for employers
- Gender is irrelevant. The EEA and the Code protect every employee. Complaints from men must be treated as seriously as any other.
- Informal processes may fall short. A grievance meeting, even before an independent chairperson, may not be enough. In serious cases, formal discipline is expected unless the victim agrees otherwise.
- Listen to the complainant. Ignoring a victim's clear wishes will count heavily against an employer.
- Prevention must come first. To rely on the section 60(4) defence, an employer must have a harassment policy, regular training and accessible reporting mechanisms in place before an incident occurs.
This case confirms that the right to dignity at work belongs to everyone. When a harassment complaint is made, employers should respond formally, promptly and with the victim's interests at the centre. Failing to do so may result in liability.
