Sexual Harassment: Why do Victims so often Resign? E v Ikwezi Municipality 2016 37 ILJ 1799 (ECG)

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.

Keywords

• Sexual harassment; vicarious liability; direct liability; disciplinary hearing; unsatisfactory sanction; section 158(1) of the Labour Relations Act; Post- Traumatic Stress Disorder power relationships; psychological safety of a victim; close connection test; enterprise risk; second hearing; unilateral change of sanction.