It is of paramount importance that sexual harassment be dealt with properly by all Employers in the workplace. Much needed guidance was given to Employers when the Code of Good Practice for the Handling of Sexual Harassment Cases was published in the Government Gazette in 1998. This Code was amended and published in the Government Gazette on 4 August 2005. The Amended Code failed to repeal the Code that was published in 1998 and created uncertainty as a result thereof.
The Labour Appeal Court held in Campbell Scientific Africa (Pty) Ltd v Simmers and Others:“In spite of it being termed the “Amended” Code, this Code does not replace or supersede the 1998 Code, which to date has not been withdrawn. The result is that in terms of s203(3), both Codes are “relevant codes of good practice” to guide commissioners in the interpretation and application of the LRA.”
This position was finally rectified on 19 December 2018 when the Minister of Labour issued a formal Notice in the Government Gazette formally repealing the 1998 Code and replacing it with the Amended Code that was published in 2005. It will now be easier for Employers to apply the Amended Code in the workplace. What does the Amended Code determine? How must sexual harassment cases be dealt with?
Whom can be sexually harassed in the workplace?
The Amended Code applies to the workplace, but Victims and Perpetrators of sexual harassment may include the following: Owners, Employers, Managers, Supervisors, Employees, Job Applicants, Clients, Suppliers, Contractors and “others having dealings with a business.” What is furthermore of interest is that a non-Employee may also be a victim of sexual harassment whereby the harassment transpired at a workplace or in the course of the Perpetrator’s employment.
What is sexual harassment?
Sexual harassment is defined in the Amended Code as “unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace, taking into account all of the following factors: whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation; whether the sexual conduct was unwelcome; the nature and extent of the sexual conduct; and the impact of the sexual conduct on the employee”. The definition is therefore quite broad and aims to cast a wide net regarding “unwelcome conduct of a sexual nature.”
Guiding principles and Sexual Harassment Policies
The sole objective of the Amended Code is to guide Employers to enable them to create and establish a culture in the workplace whereby the dignity of all its Employees is respected. To maintain such a culture, the Employer must therefore establish Policies whereby complaints of sexual harassment are investigated and addressed. All forms of sexual harassment must be discouraged, and Employees should be required to refrain from perpetrating acts of sexual harassment. It is of paramount importance that once the Sexual Harassment Policy has been adopted that Employees should receive training on the contents thereof. A copy of the said Policy must also be provided to the Employees.
Procedures in the workplace
The aim of establishing procedures is to ensure that this can be resolved in a sensitive and efficient manner. The key is that mechanisms must be established to ensure that instances of harassment be reported immediately (or as soon as reasonably possible). This will ensure that the Complainant will not suffer further harassment, that the matter can be investigated relatively quickly, possibly resolved and contained.
The Employer should then consult all the Parties involved, ensure that the guidelines of the Amended Code as well as its Sexual Harassment Policies are followed to eradicate the sexual harassment in its workplace.
An informal procedure can be commenced at the onset, and the Complainant provided with counselling, advice and assistance. At a later stage in the investigative process, it may be necessary to conduct a formal procedure.
It is advisable that a Designated Manager or more Senior Employee be trained to handle sexual harassment matters in the workplace. Furthermore, it must be noted that confidentiality should always be maintained. Once the formal procedure has been concluded, the Employer should also assess the risk of employing the Perpetrator by evaluating the effect the said Employee has on the entire staff complement and whether it is necessary to charge the Perpetrator with misconduct and take him/ her to a Disciplinary Hearing.
The Employer should also consider the effect the harassment has had on the Complainant and should perhaps grant the said Employee additional paid sick leave to assist the Employee in recovering from it.
It is the duty of Employers to protect their Employees from sexual harassment and to ensure that Employees are not being victimized by their Colleagues. It is therefore of paramount importance that proper Policies addressing the harassment be drafted and implemented in the workplace. Furthermore, should complaints be received, it must be addressed and investigated as soon as reasonably possible with the necessary sensitivity and confidentiality.
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Written by Helena Roodt, Attorney, SchoemanLaw