Abstract
This article endeavours to find answers to the question of why the victims of sexual harassment often resign after the harassment, while the perpetrator continues working, and suggests how some of the human cost to victims of sexual harassment can be prevented. E v Ikwezi Municipality provides a classic example of how the failure of the employer to protect the victim exacerbated her suffering from Post-Traumatic Stress Disorder (PTSD), eventually leaving her with no option but to resign. Had the employer conducted a risk analysis, it could have prevented the sexual harassment by alerting employees to the content of the Code of Good Practice on the Handling of Sexual Harassment in the Workplace. Further, had the employer been aware that it was responsible for the victim's psychological safety also after the disciplinary hearing, it could have taken measures to ensure her safety. The unsatisfactory sanction (the harasser was not dismissed) could lastly have been referred to the Labour Court for review. Unfortunately, the wrong legal advice and an incompetent chairperson led to the municipality’s failing adequately to protect the victim. This caused (and aggravated) the symptoms of PTSD, which forced the victim to resign.
 
Highlights
The #MeToo movement, sparked by allegations of sexual harassment against Harvey Weinstein and other high profile men in the entertainment industry,1 highlighted the continuous and widespread abuse of women in the workplace by men in positions of power.2 Despite the common-law liability of employers, legislation imposing liability for sexual harassment on employers,3 and a Code of Good Practice on the Handling of Sexual Harassment in the Workplace,4 sexual harassment is still ruining the lives of many women in the workplace in South Africa
In contrast to the lenient approach followed by the courts regarding the permissibility of second hearings, the Labour Appeal Court (LAC) held in County Fair Foods (Pty) Ltd v Commissioner for Conciliation Mediation and Arbitration,84 South African Revenue Services v Commissioner for Conciliation Mediation and Arbitration85 and South Africa Revenue Services v Commissioner for Conciliation Mediation and Arbitration86 that employers cannot unilaterally change a sanction imposed by a chairperson of a disciplinary hearing if no provision to that effect is made in the disciplinary code
Allegations of sexual harassment by men in powerful positions, taking place in workplaces all over the world, brought to the fore by the #MeToo campaign, emphasise the need to focus on measures that will prevent the human damage caused by sexual harassment
Summary
The #MeToo movement, sparked by allegations of sexual harassment against Harvey Weinstein and other high profile men in the entertainment industry, highlighted the continuous and widespread abuse of women in the workplace by men in positions of power. Despite the common-law liability of employers, legislation imposing liability for sexual harassment on employers, and a Code of Good Practice on the Handling of Sexual Harassment in the Workplace, sexual harassment is still ruining the lives (and careers) of many women in the workplace in South Africa. Ikwezi mirrors the story of countless other cases of sexual harassment in which the victims are forced to resign (or wish to resign but cannot do so for financial reasons) because of the second trauma, namely the unbearable situation of having to continue working with their assailants, because of a lack of protection by their employers.. I point out that a botched disciplinary hearing presided over by an incompetent chairperson, as well as ignorance of the municipality of its right to refer the decision of the disciplinary chairman for review, exacerbated the victim's damages. These factors led to her resignation and a claim for more than R4 million against the municipality. Outside the ambit of this case note, I briefly discuss the possibility that employers, in certain limited circumstances, have the option to hold a second hearing or to unilaterally change an unsatisfactory sanction to one of dismissal, if the seriousness of the misconduct warrants such a change
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