Sexual harassment may be described as persistent, unsolicited, and unwanted sexual advances or suggestions by one person to another. Sexual harassment may include unwelcome physical, verbal, or non-verbal conduct, but is not limited to the examples listed in the Code of Good Practice on Sexual Harassment.
The court held that sexual harassment, whether it be between members of the same sex or opposite sex, was a serious matter requiring the attention of employers. The court also pointed out that, depending on the form it took, such behaviour violates the victim’s right to the integrity of the body and personality, and is aggravated in the employment context by the fact that the victims are sometimes afraid to complain because they fear this could lead to loss of employment opportunities, or even to dismissal.
This view is reinforced by a Code of Good Practice on Sexual Harassment, which gives specific guidance to employers on how to handle sexual harassment cases.
The objective of the Code is to eliminate sexual harassment in the workplace. This Code provides appropriate procedures to deal with the problem and prevent its recurrence. The Code further encourages and promotes the development and implementation of policies and procedures that will lead to the creation of workplaces that are free of sexual harassment, where employers and employees respect one another’s integrity and dignity, their privacy, and their right to equity in the workplace.
Since the promulgation of the Code, the courts and arbitrators have upheld the dismissal of several employees for sexual harassment. In some cases, however, dismissal has been held too harsh a sanction in some circumstances.
A single assault will not necessarily amount to sexual harassment, even if it is sexually motivated. However, this does not mean that such conduct will be condoned, as it still amounts to assault.
An employer may also be held to have constructively dismissed an employee if management fails to control such behaviour when it was aware of it, and the employee is forced to resign.
The Employment Equity Act provides that harassment of an employee is a form of discrimination and is prohibited on anyone, or a combination of grounds of unfair discrimination as listed in section 6 (1) of the Employment Equity Act. An employer may, therefore, be held liable for sexual harassment by an employee.
Employers should create and maintain a working environment in which the dignity of employees are 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 fear reprisals.
It is advisable to have a Sexual Harassment Policy and Procedure manual in place in order for all employees to be aware of the rules in the workplace and how such conduct would be dealt with.
Article by: Porthri Blauw
Dispute Resolution Official – George