When an employer and employee wish to resolve disputes between themselves a settlement agreement can be concluded where the parties agree to end their relationship.
This agreement will typically also include non-disclosure obligations – provisions by which the parties involved agree not to disclose confidential information that they shared with each other as a necessary part of doing business together or not to discuss the contents of the settlement agreement and the events leading up to its conclusion.
South African law
In the case of Harvey Weinstein, the disgraced movie producer accused of sexual abuse, these non-disclosure agreements (NDAs) where used to silence his victims and witnesses. When The Weinstein Company filed for bankruptcy in March, the company said that the NDAs were no longer in effect and that “no one should be afraid to speak out or coerced to stay quiet”.
In South Africa the law and our courts provide protection for employees who are being sexually harassed and impose punitive measures on employers who fail to protect employees from sexual harassment.
The question arises if NDAs can also form part of sexual harassment cases in South Africa, like the case with Weinstein?
The duty to protect
Sexual harassment is defined as “unwanted sexual behaviour or comment, which has a negative effect on the recipient”. A single act could constitute sexual harassment.
When a person is being sexually harassed, he or she should report it, and the employer has a duty to protect the employee against it.
In theory an employer and employee, be it the victim or accused, can negotiate a settlement agreement. This will be treated as any contract and governed by ordinary contractual laws.
It is arguable that NDA's can be utilised to add to the culture of silencing the victims of sexual harassment. This is so if it's purpose is to exit the victim from the employ of the organisation whilst protecting the perpetrator and preventing a victim from speaking about their experiences. Pertinently however an NDA can never stop someone from complying with a legal obligation or provide for illegal action to be taken.
Our labour legislation places a duty on employers to ensure that complaints of sexual harassment are properly dealt with. Failure to do so may lead to the employer being held vicariously liable for the acts of sexual harassment committed towards its employee/s.
In preventing and managing sexual harassment in the workplace, the employer must adopt functional workplace policies. Not only does a policy create awareness, it also alleviates employer liability in terms of the Employment Equity Act (EEA).
Section 60 of that EEA renders an employer liable for sexual harassment perpetrated by one employee against another, if the employer fails to take steps to eliminate sexual harassment that has been duly reported.
Alternatively, the employer can escape liability if it can show that it did all that was reasonably practicable to ensure that the employee would not perpetrate sexual harassment.
Systems and policies must be put in place to deal extensively with the prevention and management of sexual harassment and employers must give clear guidelines and direction to managers.
A multitude of factors
The employers’ obligations when a complaint of sexual harassment is brought to its attention are threefold.
It is to consult with all relevant parties, address the complaint in terms of the Code and the employers’ sexual harassment policy, and take steps to eliminate sexual harassment.
The EEA provides that should an employer fail to fulfil its obligations and it is proved that its employee/s committed sexual harassment, then the employer is deemed to have committed sexual harassment. In addition to this the constitutional right to fair labour practices also requires an employer to adequately deal with complaints of sexual harassment that are not committed by its employee/s but by an outsider. Failure to do so may open the employer up to a possible monetary claim for damages.
Our courts have awarded significant amounts of money to victims of sexual harassment, where it has been shown that the employer failed to fulfil its obligation in terms of the EEA and the Code. An employer would be well advised to ensure that it complies with the obligations imposed by the law in order to ensure it doesn’t find itself paying for the perpetrator/s behaviour.
A multitude of factors should be considered prior to concluding a NDA with an employee on either side of a sexual harassment claim. These should be entered into cautiously having due regard to the specific circumstances of the case.
The company does not want to be seen as contributing to silencing the victims, condoning bad behaviour or to sweep issues of sexual harassment under the rug, and therefore should always consider the specific circumstances of the case before making use of a NDA.
Employees who are victims of sexual harassment are under no obligation to conclude a NDA, and should take legal advice prior to the conclusion of any such agreement. Employees should be cognisant of the fact that there exists mechanisms within the law to assist them and through which they can obtain recourse.
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