What is sexual harassment?
Put simply, sexual harassment constitutes as any unwanted attention of a sexual nature in the workplace, from a male or a female employee. It includes for instance touching, sexual jokes, rude gestures, requests for sex, perverse staring and even whistling.
If you look at the current rape statistics, it is apparent that South Africa has developed a notorious reputation for sexual crimes. Lisa Vetten, an independent gender policy expert addressed the problem and stated “It is certainly true that many cases are kept secret, but the reasons are complicated. Sexual harassment in the workplace is often trivialised. There is a lot of confusion around ‘resisting sexual harassment’ and ‘lacking a sense of humour’, for example. Women also sometimes feel they will be accused of making something out of nothing, and so they keep quiet”. In our experience, situations like these occur more often than you would expect.
What should an employee do if subjected to sexual harassment?
The Labour Relations Act addresses the problem in the Code of Good Practice. Firstly, an employee has the right to respect and dignity in the workplace. If these rights are inflicted because of sexual harassment, an employee can lay a complaint at the Human Resources department against the harasser. Situations like these can be dealt with formally or informally. Informal action usually include where the targeted employee takes the situation into his/her own hands and addresses the harasser personally. In other cases, a formal grievance enquiry can be held.
If the victim of sexual harassment is not satisfied with an outcome after a formal grievance was held, the victim can refer the case to the CCMA in accordance with the provisions of section 135 of the Act. Should the dispute remain unresolved, either party may refer the dispute to the Labour Court within 30 days of receipt of the certificate issued by the commissioner in terms of section 135(5).
If an employer fails address a sexual harassment complaint, the consequences may be serious. In Grobler v Naspers Bpk en n’ ander  All SA 160 (CC), a manager was found guilty of sexually harassing an employee. The court found the employer to be vicariously liable for the conduct of the manager because it had failed to take appropriate action to prevent the harassment. The employer was liable for the resultant damages of just short of R1 million.
The range of disciplinary sanctions to which employees will be liable should be clearly stated in the code of conduct. It should also be made clear that it will be a disciplinary offence to victimize or retaliate against an employee who in good faith lodges a grievance of sexual harassment. However if you as the employer deal with sexual harassment, one should investigation the case thoroughly to make sure that the alleged allegations are true and correct.
In cases of persistent harassment or a single incident of serious misconduct, employers ought to follow the procedures set out in the Code of Practice contained in Schedule 8 of this Act. If a harasser is substantially found guilty of the allegations after a disciplinary enquiry was held, the harasser can be summary dismissed.
A victim of sexual harassment has the right to press criminal and or/civil charges against the harasser separately if the victim wish to do so. This victim is thus by no means limited by the LRA in seeking a resolution.
For information on B&A’s video based training programme Sexual Harassment Training: The Code of Good Practice contact us today.