New rules published in December mean that South African businesses should now have more clarity on sexual harassment cases.
This is according to Motheo Mfikoe, an associate at Baker Mckenzie, who said that there has previously been some confusion regarding the issue in South Africa due to two conflicting pieces of legislation.
“Previously, sexual harassment cases were dealt with in terms of the Employment Equity Act (EEA), read together with the Code of Good Practice in the Handling of Sexual Harassment Cases in the Workplace,” she said.
“On 4 August 2005, the Amendment to the Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace was published.”
The 2005 Code, however, did not repeal the 1998 Code and both codes continued to apply at the same time.
This created ambiguity as to which provisions should be relied upon, said Mfikoe.
The ambiguity caused by the reliance on both codes was highlighted in a 2018 CCMA case, said Mfikoe.
“In this case, an employee had laid a sexual harassment complaint against a colleague with the CCMA,” she said.
“On hearing this case, the commissioner found that the conduct complained of could not be regarded as constituting sexual harassment as the complainant had not indicated that the conduct was unwelcome and/or unwanted.”
On review, the Labour Court held that the commissioner had failed to consider the 2005 code, said Mfikoe.
“For conduct to constitute sexual harassment, the 2005 code does not require the accused employee to be aware that their conduct was unwelcome nor does it require the complainant to make it clear that the conduct is unwanted,” she said.
Differences in codes
Mfikoe said that the different provisions in the 2005 code include:
- Expanding the scope of application of sexual harassment policies to include employers, employees and individuals dealing with the business;
- Broadening the definition of ‘sexual harassment’ and providing a list of four factors to be considered in cases of sexual harassment. This definition is much clearer than the previous definition set out in the 1998 code and gives guidelines as to the meaning of each of the factors;
- The element of ‘persistent” sexual advances is specified in the 1998 code, but it is not present in the 2005 code. The 2005 code is broader and requires a general consideration of the conduct and the impact of these advances on the employee;
- The 2005 code does not contain the provision in the 1998 code which states that the recipient must make it ‘clear’ that the behaviour is considered offensive. The 2005 code states that there are different ways in which an employee may indicate that sexual conduct is unwelcome, including walking away from, or not responding to, the perpetrator;
- Verbal forms of sexual harassment include the sending, by electronic means or otherwise, of sexually explicit text.
On 19 December 2018, the minister of labour issued a notice formally repealing the 1998 code and effectively streamlining the obligations and guidelines for preventing sexual harassment in the workplace.
Mfikoe said that employers should, therefore, consider their current policies in line with the following,
- Sexual harassment is a form of unfair discrimination on the basis of sex and/or gender and/or sexual orientation, which infringes the rights of the complainant and constitutes a barrier to equity in the workplace.
- Sexual harassment in the workplace will not be permitted or condoned.
- Complainants in sexual harassment matters have the right to follow the procedures in the policy and appropriate action must be taken by the employer.
- It will be a disciplinary offence to victimise or retaliate against an employee who in good faith lodges a grievance of sexual harassment.
“The procedure to be followed in cases of sexual harassment has been clearly set out in the 2005 code and includes advising the complainant that they may choose to follow either a formal or informal procedure, and reassuring the complainant that they will not face job loss or any adverse consequences if either procedure is followed,” said Mfikoe.
“In cases where an individual has decided to follow an informal procedure in dealing with a complaint, the employer should still assess the risk to other persons in the workplace, taking into account all relevant factors, including the severity of the sexual harassment and whether the perpetrator has a history of sexual harassment.”
Mfikoe added that the severity of sexual harassment in the workplace has far-reaching consequences.
“Employers are strongly encouraged to consider and update their current policies on sexual harassment and develop procedures to prevent present and future sexual harassment. This, in turn, will foster a safe workplace for employees,” she said.