When confronted with a sexual harassment claim, it is always advisable for employers and employees to familiarise themselves with the Employment Equity Act and the Code of Good Practice pertaining to sexual harassment before pursuing the matter. Firstly, it is important for the party involved to bring the alleged conduct to the employer’s attention for investigation. The employer must consult all relevant parties and take the necessary steps to eliminate the harassment and comply with the provisions of the Employment Equity Act.
Should a complaint of alleged sexual harassment not be satisfactorily resolved by the internal procedures, either party may within 6 months of the act or omission having arisen, refer the matter to the CCMA for conciliation in accordance with the provisions of section 135 of the Labour Relations Act. If the dispute remains unresolved, either party may refer the dispute to the Labour Court within 30 days of receipt of the certificate issued by the commissioner in terms of section 135(5).
The CCMA will, however, have jurisdiction to arbitrate the dispute in 2 instances:
- Where the said applicant/employee is earning below the threshold determined by the Minister of Labour as stated in section 6(3) of the Basic Condition of Employment Act – R205 433.30;
- In an instance where the applicant/employee does not earn below the threshold, the matter will have to be referred to Labour Court for adjudication unless parties can agree in writing, giving consent, that the CCMA may arbitrate the dispute.
Article by: Ernest Masupye
CEO Dispute Official – Gauteng