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Here's why the courts have zero-tolerance for constructive dismissal and sexual harassment cases

by , 16 September 2013
Sexual harassment is rife in the workplace. As we speak, the Congress of South African Trade Unions (Cosatu) is in turmoil. And it's all thanks to Zwelinzima Vavi's sexual harassment scandal. And he's not alone. Earlier this month, the University of the Witwatersrand dismissed a third lecturer for sexual harassment. According to reports, the two other employees were dismissed in July. As an employer, you need to be aware of the strong link between constructive dismissal and sexual harassment. Here's why...

Your employee can take you to the CCMA even if he resigns from your business. This is called constructive dismissal. Your employee may claim he was forced to resign because you made his continued employment intolerable.

One of the instances this can happen is if your employee is sexually harassed.

The courts take cases that involve constructive dismissal and sexual harassment very seriously.

In constructive dismissal cases provoked by sexual harassment, employees feel forced to resign because the sexual harassment is often perpetrated by somebody in power, says the Labour Law for Managers Loose Leaf Service.

The victim feels too scared or embarrassed to report the incident but needs to escape from the intolerable situation. She or he has no choice but to resign.

The courts find this type of provoked resignation particularly heinous.

The Labour Law for Managers Loose Leaf Service explains that in the case of Ntsabo vs. Real Security CC (2004, 1BLLR 58) a female security guard was sexually harassed by her supervisor.

Although she eventually plucked up the courage to report it, management did nothing about it. After she resigned due to the unbearable situation, she developed suicidal tendencies and had to be hospitalised.

The Court found that she had been unfairly constructively dismissed. It also found, more surprisingly, that this didn't constitute automatically unfair dismissal.

The court still ordered the employer to pay the employee the equivalent of 12 months' salary in compensation plus the equivalent of 50 months pay in damages.

Warning: If the court found the dismissal automatically unfair it could have ordered the employer to pay compensation of up to 24 months' remuneration!

As you can see, constructive dismissal cases provoked by sexual harassment are taken very seriously. If you don't act, you'll be liable to pay a large amount of compensation that could total thousands of rands when your employee resigns.

So make sure have a grievance procedure in place, implement a sexual harassment policy and act on a report of sexual harassment immediately.

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