Checkers must pay ex-clerk R25,000 for manager’s sexual harassment

Shoprite Checkers must pay a former employee R25,000 in compensation after she was sexually harassed by a general manager.

The payment, in terms of the Employment Equity Act, was ordered on Friday by a Cape Town labour court judge who dismissed the retail group's appeal against a finding by a Commission for Conciliation, Mediation and Arbitration (CCMA) arbitrator.

However, Judge Robert Lagrange halved the compensation awarded to the former Checkers Food Services telesales clerk, identified in the judgment as JL.

He ordered Shoprite Checkers “to adopt a sexual harassment policy, develop a programme to inform all its employees thereof and report to the CCMA on or before March 15 2022 what has been done in this regard”.

Lagrange set aside the arbitrator's finding that JL's suspension after the company decided she had made false allegations against the general manager was procedurally unfair.

He also set aside the CCMA findings that JL was constructively dismissed, meaning she loses the six months' compensation she was awarded, and that her dismissal was unfair.

The labour court ruling ends five years of wrangling over an incident in December 2016 when JL was assisting a general manager identified as KB to access a file on an absent colleague's computer.

“She claimed that he slapped her on her left buttock. At the time, or immediately afterwards as they proceeded to the printer outside the telesales room, JL claimed that KB giggled,” said Lagrange.

JL emailed a grievance letter the following day to KB which said: “You came to my desk to enquire about an order that I had to resolve about a client that was not happy. I went to the work station of a colleague to check the order.

“When I checked the order you then violated my personality rights by slapping me on my private parts. I was shocked at first but then my shock turned to anger. You have violated me as a person and your action was totally uncalled for and borders [on] sexual harassment.”

During an investigation by personnel manager C de Villiers, KB passed a lie-detector test, and JL was asked to sign a document which said: “After a thorough investigation, no clear evidence has surfaced proving KB guilty. Taking the polygraph evidence into account the burden might be on JL to prove she is not presenting false allegations against KB.”

JL refused to sign and said De Villiers asked her “What kind of games are you playing?", warned KB was thinking of suing her for defamation then suspended her.

When she failed a polygraph, she was charged with making a false accusation of sexual harassment but resigned before her disciplinary hearing, claiming she had been constructively dismissed.

Lagrange said the case was “not the most egregious example of an employer’s failure to deal with a sexual harassment complaint adequately”, but Shoprite’s handling of the matter fell short of what was necessary.

“In particular, its treatment of JL and KB was not even-handed and no advice was given to JL on different ways the matter could be handled,” he said.

“Further, in requiring ‘conclusive evidence’ that KB was guilty of harassment, De Villiers set an unreasonably high threshold of proof merely to initiate a disciplinary inquiry. Shoprite’s reasoning would result in most investigation outcomes favouring the alleged harasser.

“Shoprite did not do what was reasonably necessary in the circumstances to address JL’s sexual harassment complaint, and on that account the arbitrator’s finding that it should be held liable for the harassment should stand.”

Halving the compensation awarded by the CCMA, Lagrange said he “broadly agreed” with Shoprite's arguments that the R50,000 was too high in comparison to similar awards previously.

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