Employment and Labour Law

 

 

Yes, absolutely. Sexual harassment is not limited to harassment by men against women. It can occur between people of any gender.  The key is the sexual nature of the unwelcome conduct and its impact, not the genders involved.  Harassment can occur from a woman to a man, man to man, or woman to woman.

While witnesses and concrete evidence (emails, messages, etc.) strengthen a case, you are still encouraged to report sexual harassment even if you lack direct witnesses or documentary proof. Your testimony and credible account of events are important evidence.  Employers are legally obligated to investigate all complaints seriously, even without extensive upfront evidence. Aucamp Attorneys can advise on gathering and presenting evidence in your specific situation.

No.  The focus in sexual harassment cases is not on the harasser's intention, but on the impact of their behavior on the recipient and whether the conduct is unwelcome.  Even if someone claims they were "just joking" or didn't mean to offend, if the conduct is sexual in nature and creates a hostile environment or involves coercion, it can still be considered sexual harassment under South African law.

For external disputes referred to the CCMA, the timeframe is generally six months from the date of the incident or the last incident in a series of ongoing harassment.  It's crucial to act promptly. While there may be some flexibility in exceptional circumstances, delaying reporting can weaken your case.  Internal company grievance procedures may have their own timeframes, so review your company policy.

Not necessarily all banter or jokes, but workplace "banter" with sexual undertones can very easily cross the line into sexual harassment.  If the "jokes" are unwelcome, offensive to a reasonable person, create a hostile environment, or persist even after you've indicated discomfort, it can become sexual harassment.  What one person considers "banter," another may find deeply offensive and harassing. Employers should discourage all forms of sexual "banter" to prevent escalation into harassment.

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Sexual Harassment in the Workplace

Research indicates that a significant percentage of women in South Africa experience sexual harassment in the workplace. This harassment can have devastating psychological, social, and economic consequences for victims, including decreased job performance, absenteeism, anxiety, depression, post-traumatic stress disorder, and financial hardship.

What is Legally Defined as Sexual Harassment in South Africa?

While South African legislation doesn't offer a single, sentence definition, the Employment Equity Act and its Code of Good Practice define sexual harassment in the workplace as unwelcome sexual conduct - verbal, non-verbal, or physical - that violates employee rights. This includes conduct creating a hostile environment or involving sexual coercion.

Sexual Harassment in the South African Workplace Protecting Your Rights

Sexual harassment is a serious violation of human dignity and a form of unfair discrimination. This guide provides a comprehensive overview of sexual harassment in South African workplaces, drawing from the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (the Harassment Code), the Employment Equity Act (EEA), and other relevant legislation.

Forms of Sexual Harassment

Sexual harassment is unwanted conduct of a sexual nature. The "unwanted" element is key, distinguishing it from consensual interactions. It creates a hostile or offensive work environment and can manifest in various ways:

  • Physical Harassment This includes any unwanted physical contact, from inappropriate touching, groping, and pinching to sexual assault and rape. It also includes intrusive physical contact, such as unwelcome physical proximity and blocking someone's path.
  • intrusive inquiries about their sex life. It can also include persistent and unwelcome attention of a romantic or sexual nature.
  • Non-Verbal Harassment This includes unwelcome gestures of a sexual nature, indecent exposure, and the display or distribution (including electronically) of sexually explicit pictures, objects, or messages.
  • Quid Pro Quo Harassment This occurs when someone in a position of power (e.g., a manager or supervisor) offers or implies job benefits, such as promotions, training opportunities, or favourable treatment, in exchange for sexual favours. This is a form of sexual bribery.
  • Sexual Favouritism This involves unfairly rewarding those who submit to sexual advances while denying opportunities to other equally or more deserving employees who do not.

Who is Protected? The Harassment Code provides broad protection, extending to individuals who have dealings with the business including Employees (full-time, part-time, and temporary), Job applicants,Employers, managers, and supervisors, Clients, customers, and suppliers, Contractors and their employees.

Legal Framework and Employer Responsibilities

The EEA prohibits sexual harassment as a form of unfair discrimination. The Harassment Code offers practical guidance for employers on preventing and addressing harassment. Key employer obligations include:

  • Creating a Safe and Respectful Workplace Employers must foster a workplace culture where everyone is treated with dignity and respect, and where victims feel safe reporting harassment without fear of retaliation.
  • Developing and Implementing a Comprehensive Policy Employers must establish a clear, accessible, and comprehensive sexual harassment policy, communicate it effectively to all employees (including during induction and training), and consistently enforce it.
  • Taking Proactive Prevention Measures This includes conducting risk assessments to identify potential areas of concern, providing regular training and awareness programs for all staff, and establishing clear and accessible reporting procedures.
  • Conducting Thorough and Impartial Investigations Employers must investigate all complaints of sexual harassment promptly, confidentially, and impartially. Appropriate disciplinary action must be taken against perpetrators, up to and including dismissal for serious or repeated offenses.
  • Protecting Against Victimisation Employers must take steps to protect complainants, witnesses, and those involved in investigations from any form of retaliation or victimisation.

Legal Recourse for Workplace Sexual Harassment Seeking Justice and Compensation

Internal Procedures: Addressing Harassment Within the Workplace

Upon receiving a sexual harassment allegation, employers in South Africa are legally obligated to investigate the matter thoroughly and inform the complainant of the internal processes available to them.  These internal procedures offer initial avenues for resolution

  • Informal Process  For less severe incidents or when a complainant prefers a less formal approach, an informal process can be initiated.  This may involve the complainant, or another designated appropriate person, directly communicating with the alleged harasser. The aim is to explain that the conduct is unwelcome, offensive, and related to a prohibited ground (sex/gender). Alternatively, a neutral party can approach the alleged harasser anonymously to generally address offensive behavior in the workplace. Following any informal resolution, employers should consider what further steps, if any, are needed to ensure a safe environment.  This process is often quicker and less adversarial, but may not be suitable for serious or persistent harassment.
  • Formal Process Workplace Grievance  Employees have the right to lodge a formal grievance regarding sexual harassment within their workplace, regardless of whether they have pursued an informal resolution first. A formal complaint typically involves submitting a written grievance outlining the details of the harassment and the outcome desired by the complainant. Once a formal grievance is lodged, the employer is obligated to follow established disciplinary procedures, often detailed in the company's harassment policy.  This usually involves a formal investigation, disciplinary hearing if warranted, and potential sanctions against the perpetrator.  This process is more structured and provides a clear path for investigation and disciplinary action.

External Legal Remedies -  Escalating Beyond the Workplace

If internal processes fail to provide a satisfactory resolution, or if the matter is sufficiently serious, South African law provides external legal avenues for redress

  • Commission for Conciliation, Mediation and Arbitration (CCMA)  Employees can refer a sexual harassment dispute to the CCMA within six months of the incident.  The CCMA will initially attempt to resolve the matter through conciliation, a mediation process aimed at reaching a mutually acceptable agreement between the parties.
  • CCMA Arbitration or Labour Court Adjudication If conciliation at the CCMA is unsuccessful, the employee has 90 days to escalate the matter further. They can choose to refer the case for arbitration at the CCMA (where a CCMA arbitrator makes a binding decision) or for adjudication by the Labour Court.  Deciding between arbitration and Labour Court adjudication depends on the nature and complexity of the case, and Aucamp Inc can advise you on the most appropriate route.
  • Labour Court Powers The Labour Court has broad powers to grant orders it deems just and equitable in sexual harassment cases. This can include:
    • Compensation for the Employee Financial compensation to the victim for emotional distress, psychological harm, and any financial losses suffered as a result of the harassment.
    • Damages Payable by the Employer In certain cases, the Labour Court can order the employer to pay damages, particularly if the employer failed to take reasonable steps to prevent or address the harassment.
    • Orders Compelling Preventative Measures The Court can order the employer to implement specific measures to prevent future discrimination and harassment in the workplace, such as mandatory training, policy changes, or improved reporting mechanisms.
  • Equality Court (PEPUDA)  The Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) also provides a legal avenue for addressing harassment, including sexual harassment.  Claims of harassment can be referred to the Equality Court, which is designed to address unfair discrimination and promote equality. The Equality Court can grant a range of remedies, similar to the Labour Court, focused on addressing the discriminatory nature of the harassment and providing redress to the victim.

Remember you are not alone! While the #MeToo movement had a global impact, South Africa has maintained a consistent focus on addressing gender-based violence (GBV) through movements like #AmINext. These local movements have played a crucial role in raising awareness and strengthening the legal framework, including the ratification of ILO Convention 190 and the implementation of the Harassment Code.

Let Aucamp Inc Guide You to Justice and Fair Compensation

Navigating the legal remedies for sexual harassment can be daunting and emotionally challenging. Aucamp Inc provides expert legal representation and compassionate support throughout the process. Whether you are considering internal grievance procedures, pursuing external litigation at the CCMA, Labour Court, or Equality Court, we are here to:

  • Advise you on the most appropriate legal strategy for your specific situation.
  • Guide you through each step of the chosen process.
  • Represent you in internal investigations, CCMA proceedings, Labour Court, or Equality Court hearings.
  • Fight for your rights to ensure you receive just outcomes and fair compensation for the harm you have suffered.

Don't suffer in silence. Take action to address workplace sexual harassment. Contact Aucamp Inc today for a confidential consultation to discuss your legal options and begin your path to resolution and justice.