By Warren Kleu
Cape Town Branch Manager
Sexual harassment in the workplace is any unwelcome or unwanted conduct of a sexual nature from a person at work, that causes discomfort, humiliation, offence or distress, or interferes with the job. This includes all such actions and practices of a sexual nature by a person or a group of people directed at one or more workers.
Sexual harassment can consist of unwelcome sexual advances, requests for sexual favours in return for employment benefits, pressure for sexual favours to close sales deals, the display of sexually offensive posters, cartoons or drawings, screensavers or any other form of verbal, non verbal or physical behaviour that the recipient regards or makes known is unwelcome or inappropriate.
In all cases it is the consequences, and not the intentions, that count. The severity of the harassment is to a large extent determined by the impact it has on the victim. So "It was just a joke" or "I had too much to drink" is no excuse.
Harassment can have a negative effect on companies by reducing productivity and morale which can directly affect their bottom line. If a worker is constantly concerned that the harasser may continue with this behaviour, he or she is unlikely to be able to concentrate on the job required.
If a company has no clear policy on sexual harassment, it may also have problems if it needs to take disciplinary steps against a harasser. The lack of a clear definition of unacceptable behaviour or policy would make it easier for a harasser to take the company to court to appeal against disciplinary steps or dismissal.
Where complaints of sexual harassment are made, they must be dealt with promptly. This is because an employer would escape liability if it can show that it did all that was reasonably practicable to eliminate the sexual harassment. If there is a complaint, it must be investigated, and if found to be legitimate, disciplinary action must be taken, if not an employer can be held liable for acts of sexual harassment committed by its employees on their colleagues.
Furthermore, the employer may be held liable for personal damages suffered by the aggrieved employee as a result of sexual harassment. These were the findings of the Labour Court in the case of Ntsabo vs Real Security after considering the provisions of the Employment Equity act, it held that the employer was vicariously liable for the supervisors actions and awarded the applicant damages of R70 000, 00 for future medical costs and general damages.
Code of good Practise on Sexual Harrasement
The code of good practise provides guidelines on handling sexual harassment cases and states that employers should create and maintain a working environment in which the dignity of employees is respected. A climate in the workplace should also be created and maintained in which victims of sexual harassment will not feel that their grievances are ignored or trivialised.
The first step in dealing with the problem of sexual harassment is for employers to issue a policy statement which should provide that all employees, job applicants and other persons who have dealings with the business, have the right to be treated with dignity, and any person who has been subjected to sexual harassment in the workplace, has a right to raise a grievance about it and that the appropriate action will be taken by the employer.
A policy on sexual harassment should also explain the procedure which should be followed by employees who are victims of sexual harassment and should ensure allegations of sexual harassment are dealt with seriously, expeditiously, sensitively and confidentially. The policy should protect the employee against victimisation, retaliation for lodging grievances and from false accusations.
Employees should be advised that any problem relating to sexual harassment can be resolved formally or informally. A formal procedure for resolving the grievance should be available and followed and the issue dealt with within a reasonable time frame.
The range of disciplinary sanctions that can be applied to employees who are found guilty of sexual harassment should be clearly stated, and it should also be made clear that it will be a disciplinary offence to victimise or retaliate against an employee who in good faith lodges a grievance of sexual harassment.
In closing, it is important that the company ensures that grievances about sexual harassment are investigated and handled in a manner that ensures that the identities of the persons involved are kept confidential.
Please contact the Labournet Helpdesk on 0861 522638 should you require any assistance or have any questions.
Disclaimer
The information published in this article or newsletter is of general nature and should not be used without obtaining specific advise as to its application in your business or under your specific circumstances. LabourNet will accept no liability if the information is used without first obtaining specific advise from one of our consultants.