Sexual Harassment - The Buck Stops, Where?

Posted on Wednesday, 18 July 2007
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On April 15th, millions of South Africans tuned into Carte Blanch and watched with disgust, footage of a manager of major furniture retailer, Morkels, sexually badgering a fellow employee. The recording, captured with a hidden camera, was both graphic and earned the chain much unwanted attention.

This has brought the issue of sexual harassment in the workplace, into the spotlight again. Regrettably, this case is not unique and new allegations of sexual harassment are being made, both behind corporate closed doors and at the CCMA, with increasing frequency.

Defining Sexual Harassment
According to Simon Colman, a labour risk analyst at Camargue, a specialist underwriting insurance firm with approved coverholder status at Lloyd’s of London, sexual harassment is defined in the Code of Good Practice on Handling Sexual Harassment cases as being:

a) Unwanted conduct of a sexual nature (the unwanted nature of sexual harassment distinguishes it from behaviour that is welcome and mutual)
b) Sexual attention which becomes sexual harassment if:
- The behaviour is persisted in, although a single incident of harassment can constitute sexual harassment; and/or
- The recipient has made it clear that the behaviour is considered offensive; and/or
- The perpetrator should have known that the behaviour is regarded as unacceptable

“Given our history in South Africa, the majority of South Africans will not be unaware of the unacceptability of discriminatory practices (including harassment). As an employer however, a greater degree of understanding of the problem is required if one is to be aware of where the organisation’s duties begin and end,” adds Coleman

It’s the Law
Common Law dictates that employers are obliged to provide a safe working environment for employees. This is underlined by the Basic Conditions of Employment Act. Coleman says: “One could argue however, that while this may be easily applied on a construction site, where the donning of hard hats protects against injuries caused by man and machine, is it necessarily applicable to the office environment where the dangers could lurk in the innocuous interactions between employees in the filing room?”

Coleman confirms this and goes on to explain that in terms of our labour laws, sexual harassment is classified as being a form of discrimination, which is dealt with in a great deal of depth under the auspices of the Employment Equity Act (EEA). “It is here that we find the answers to any question we might have in terms of the proper conduct that should come in to play when dealing with cases of sexual harassment.”

Where the Employment Equity Act Comes In
Sections 5 and 6 of the Act seek to provide clarity and impose a statutory obligation upon the employer to provide both equal opportunities for all employees, as well as eliminate all discriminatory practices from company policies and practices. Section 60 goes on to establish that the employer will be liable, but only if it is brought to their attention that an employee has engaged in any conduct that is prohibited. This in terms of the EEA and if the employer has failed to investigate or eliminate the alleged conduct.

“Obviously, the particular circumstances of each case need to be investigated but in essence this means that if the employer is not made aware of the harassment or conduct, then it is unlikely that any liability will attach should the case progress through the CCMA and Labour Court,” says Coleman

The Rights of the Employee
Jan Truter, labour lawyer of online South African labour resource, www.labourwise.co.za, highlights the fact that employees also have limitations imposed on them. This in terms of the amount of time available to bring actions against employers. The CCMA must be approached within six-months of the act, or omission by the employer (only in very specific circumstances may the CCMA elect to extend this period). This would normally be the date that the employer fails to deal with the matter after becoming aware of the alleged harassment. Internal grievance policies may specify any time limitations between the date of the incident and the day the company is notified. This in order for the company to deal with the matter in the appropriate manner.

So assuming the employer is notified of an incident and fails to act upon the grievance, what then? According to Coleman the aggrieved employee may approach the CCMA and the matter will proceed through to Conciliation. If settlement is not reached, the employee may then approach the Labour Court to have the matter adjudicated. “Depending on the circumstances, the potential award made by the Court could be as high as 24-month’s salary (this is likely where the employee has resigned, constructive dismissal is alleged and the dismissal is found to be “automatically unfair”).”

Any action that is pursued in Labour Court will also not preclude the employee from approaching the High Court in a civil matter against the perpetrator of the harassment (rather than the company). Here the damages would be calculated by the Court in an effort to put the victim back in the position they were in prior to the delict having occurred. Pain and suffering, medical bills and the like would be taken into account.

Forewarned is Forearmed
Coleman concludes, “It stands to reason that employers must have adequate channels for dealing with employee complaints and grievances. The Code of Good Practice on the Handling of Sexual Harassment cases in the Workplace (issued in terms of the Employment Equity Act) should provide a useful guide to employers. Employee and manager training is critical at all levels. Litigation can be avoided if the matter is handled quickly and correctly from the time that the grievance is initiated.”

Legal expenses, damages and settlements can be an incredibly costly affair and insurance cover protecting against allegations of sexual harassment, discrimination and unfair labour practices is available. But as the old adage says, “Prevention is better than cure”.

For further information e-mail camargue@camargueum.co.za, call 011 356 4842 or visit www.camargueum.co.za.