Sexual harassment is unwanted conduct of a sexual nature. The unwanted nature of sexual harassment distinguishes it from behaviour that is welcome and mutual.
In the matter of Solidarity obo B v South African Police Service and Others (P 03/19)  ZALCPE 26, Captain B was employed by the South African Police Service (SAPS). During 2013 and 2014, her supervisor made unwelcome sexual advances and utterances towards her.
In early 2015, she communicated her intention to lodge a grievance against her supervisor but only formally lodged a grievance in June 2015. Captain B instituted these proceedings seeking relief based on the fact that the SAPS allegedly failed to take the necessary steps contemplated in Section 60 (2) of the Employment Equity Act (EEA). Solidarity argued that the SAPS is vicariously liable for acts of sexual harassment which were committed by one of its employees and liable to pay Captain B compensation. The Respondent opposed the proceedings on the basis that the Applicant failed to report the sexual harassment immediately as required in terms of Section 60 (1) of the EEA.
The Labour Court had to consider whether, due to her delay in making the complaint of sexual harassment against her supervisor, she had complied with the requirement to ‘immediately’ report it. Even though the employer’s policy also referred to ‘immediately’ reporting any sexual harassment, the Court found that she had not unduly delayed.
The Court, in this case, also considered whether the employer had taken sufficient steps to respond to her complaint and eliminate the harassment. Section 60 of the EEA enjoins employers, on receiving complaints of sexual harassment, to take the necessary steps to eliminate the reprehensible conduct.
An employer who fails to fulfil the obligation is deemed to have committed sexual harassment and may be ordered to compensate the victim whose complaint has not received the required attention.
The Court found that the employer had failed in this regard and that the employer was liable to pay her R50 000 in compensation.
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 or that they fear reprisals.
Article By: Tammy Koekemoer
Dispute Resolution Official – Bloemfontein