The Labour Relations Act 66 of 1995 sets out the guidelines in the Code of Good Practice on the handling of sexual harassment cases. The object of the code is to eliminate sexual harassment in the workplace, and it provides appropriate procedures to deal with the problem and prevent a recurrence. Sexual harassment can be defined as any unwanted conduct of a sexual nature. For example, sexual attention becomes sexual harassment if:
a) The behaviour is persisted in, although a single incident of harassment can constitute sexual harassment;
b) The recipient has made it clear that the behaviour is considered offensive; and or
c) The perpetrator should have known that the behaviour is regarded as unacceptable.
Item 4 of the Code stipulates that the forms of sexual harassment may include unwelcome physical, verbal, or non-verbal conduct. Physical conduct of a sexual nature includes all unwanted physical contact, ranging from sexual assault and rape. Verbal forms of sexual harassment include unwelcome innuendoes suggestions and hints, sexual advances, comments with sexual overtones, sex-related jokes or insults or unwelcome graphic comments about a person’s body made in their presence or to them, unwelcome and inappropriate enquiries about a person’s sex life and unwelcome whistling at a person or group of persons.
The commissioner in NUMSA obo Prezens and Duferco Steel Processing (Pty) 2006 27 ILJ 1282 (BCA) found that writing sexually explicit and insulting graffiti about a female colleague on a lavatory wall constituted sexual harassment.
Quid pro quo harassment occurs where an owner, employer, supervisor, member of management, or co-employee undertakes or attempts to influence or influences the process of employment, promotion, training, discipline, dismissal, salary increments, or other benefits of an employee or job applicant in exchange for sexual favours.
In Sookunan vs SA Post Office (2000) ILJ 1923 CCMA, the perpetrator was in a position of authority over complaints and using that authority to prevent the lodging of complaints.
Sexual favouritism exists where a person who is in a position of authority rewards only those who respond to his or her sexual advances. In contrast, other deserving employees who do not submit to sexual advances are denied promotion, merit ratings or salary increases.
Item 5 of the Code emphasises the need for sexual harassment policies at the workplace. Employers will need to create and maintain a working environment where all employees are respected and treated with dignity. Employees must be aware that any grievance related to sexual harassment will not be ignored but will be dealt with in an appropriate manner. The policy should be a deterrent for both employer and employees, and the main objective is for the parties to abide by the policy or face the consequences. It is important to note that should the employer not take reasonable steps to address any form of sexual harassment at the workplace, the employee who is a victim may sue the employer in terms of the Employment Equity Act or bring a civil action for damages. Sexual harassment cases which proceed to a disciplinary hearing has to be dealt with in a confidential manner, and therefore special steps need to be taken. Should the complainant not be satisfied with the outcome, the dispute must be referred to the CCMA for conciliation and, if no settlement is reached to the Labour Court in terms of the Employment Equity Act for the employer to compensate the aggrieved employee. All employers should abide by the Code of Good Practice and have to ensure that employees are aware of sexual harassment policies at the workplace.
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About The Author:
Trishan Bisnath started his career at SEESA in 2017 and is currently a Legal Advisor at SEESA’s Durban office. He obtained his Bachelor of Criminology degree in 2003 and LLB degree in 2007 at the University of Kwazulu-Natal. He also attended the Professional Legal Training in 2007.
Workplace Law by John Grogan eleventh addition and the Labour Relations Act 66 of 1995.