Employment Law Update, Reducing sexual harassment risk, published in the Network
SEXUAL harassment is an issue for many employers. On April 27 the Protection from Harassment Act 17 of 2011 came into force.
The act provides an inexpensive remedy for employees who are victims of sexual harassment. A complainant may approach the magistrate's court for a protection order against the harasser without notice to the alleged harasser:
The court will, when faced with an application of this nature, issue an interim protection order against the harasser if it is satisfied that:
The alleged harasser has engaged in harassment.
Harm is being or may be suffered by the complainant as a result of that conduct if a protection order is not issued immediately.
The protection of the interim protection order is not likely to be achieved if prior notice of the application is given to the alleged harasser.
If an interim protection order is granted, it must be served on the harasser and he will, in that order be called upon to appear in court to show cause why the order should not be made final. If a protection order concerns a co-employee, an employer may have to take steps to ensure compliance with the order which may, subject to the circumstances, include transferring one of the employees to another department or office.
In an employment law context, sexual harassment is defined as the persistent, unsolicited and unwanted sexual advances or suggestions made by another employee. The Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace provides examples of sexual harassment including inappropriate touching, sex-related jokes, enquiries about a colleague's sex life, wolf whistling and sending sexually explicit text messages.
It is important that an employer is aware of the liability they may attract in the event of sexual harassment taking place in their workplace. In particular, a victim of harassment may claim compensation from the employer under the Employment Equity Act or in terms of common law. Employers may escape liability under the Employment Equity Act if they can show that reasonable steps were taken to prevent the harassment.
In terms of common law, the employer may be held vicariously liable for the conduct of its employee. Accordingly, an employer has a duty to provide a safe working environment in which the dignity of all its employees is respected. It is, therefore,. important for employers to investigate and respond to allegations of harassment.
Sexual harassment constitutes serious misconduct that generally warrants dismissal. In a recent case Gaga v Anglo Platinum Ltd & others, the Commission for Conciliation, Mediation and Arbitration (CCMA) reinstated an employee (the group HR manager) dismissed for sexually harassing his personal assistant. The commissioner found that the conduct was not unwelcome or offensive to the complainant. The Labour Court did not agree with the CCMA. In finding that the dismissal was fair, the court held that the commissioner had ignored the evidence that the advances were unwanted. This evidence did not reconcile with the CCMA commissioner's conclusion that the complainant had found her boss's attention "flattering". The Labour Court judge also commented that the fact that the harasser was a HR manager made his conduct even more reprehensible.
Employers are advised to take the following steps to reduce the risk of sexual harassment in the workplace:
Introduce and implement a sexual harassment policy.
Provide training for employees on the policy.
Ensure all complaints or grievances are addressed and investigated.
Make reasonable efforts to ensure compliance with any protection order granted under the Protection from Harassment Act.