South Africa’s courts have given a clear indication of the seriousness with which they are viewing sexual harassment in the workplace.
However the the comments made by the presiding judge in the recent Platinum mines case also raises an interesting question of whether it is best practice for employers to have rules in place that prohibit romantic relationships in their workplaces altogether, said Audrey Johnson, a director in ENSafrica’s employment department.
“In light of the sharp focus that has been brought to bear on addressing the scourge of sexual harassment in the workplace, primarily as a result of the global #MeToo movement, employers are being called upon to take all necessary steps available to them to eliminate sexual harassment in the workplace,” she said.
“An employer can be held liable for damages in terms of section 60 of the Employment Equity Act, 1998 (“EEA”) if it cannot prove that it did all that was reasonably practicable to ensure that its employees would not sexually harass other employees.
“The Labour Appeal Court has indicated that the preferred interpretation of section 60 of the EEA is that the employer can only escape liability if it can show that it took reasonably practicable steps proactively and in advance to eliminate future harassment.”
She also highlighted the Labour Court’s recent statements in the Platinum mines case as an example of how the courts can view romance in the workplace:
A workplace is exactly that and should not ordinarily be confused with a ‘find me love’ sanctuary or a lonely hearts’ club for love sick employees…
There is a school of thought that holds the view that human beings can be slaves to their urges.
That being so, it does not imply that employees are incapable of controlling those urges in the workplace. A workplace should be free from ‘amorous’ and testosterone filled employees looking for love and gratification at every available opportunity.
There is everything wrong when employees express their affection in the workplace to each other to the point where the conduct in question is frowned upon as is crosses that fine line between
innocent attraction and sexual harassment.
Where such conduct creates a sexually hostile and intimidating work environment that undermines the dignity, privacy and integrity of the harassed… Item 4.4 of the 2005 Code becomes relevant… Commissioners are obliged to assess and determine the impact of the sexual conduct on the employee…”
These comments certainly suggest that employees should be discouraged from expressing any affection towards each other in the workplace, said Johnson.
“This is particularly so in the case of senior employees towards their subordinates.
“To the extent that the feelings of affection are not reciprocated, this conduct would inevitably have a negative impact on the working relationship and create a hostile and unpleasant working environment for the subordinate.”
She added that while an outright prohibition on romantic relationships in the workplace may not be practical or realistic, it does appear that employers should give careful consideration to including appropriate wording in their sexual harassment policies dissuading senior employees from even attempting to make any sexual advances towards subordinate employees.
“Moreover, managerial employees should be educated on the definition of sexual harassment and the circumstances in which sexual conduct would clearly be unwelcome,” she said.