Baker McKenzie Associate Motheo Mfikoe on why it's time to update your sexual harassment policies.
Since October 2017, the #MeToo movement has had a ripple effect on society and has shone a spotlight on the manner in which sexual harassment is dealt with in the workplace. Employers bear a duty to ensure a safe and healthy working environment for their employees, and to be vigilant in their handling of sexual harassment in the work place. Section 60 of the Employment Equity Act, 55 of 1998 (EEA) places a duty on the employer to protect employees against, and to take reasonably proactive steps to eliminate, sexual harassment.
Previously, sexual harassment cases were dealt with in terms of the EEA, read together with the Code of Good Practice in the Handling of Sexual Harassment Cases in the Workplace (1998 Code). On 4 August 2005, the Amendment to the Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace (2005 Code) was published. The 2005 Code, however, did not repeal the 1998 Code and both codes continued to apply contemporaneously. This created ambiguity as to which provisions should be relied upon.
The ambiguity caused by the reliance on both codes was highlighted in the case of Rustenburg Platinum Mines Limited v UASA obo Steve Pietersen and Others  ZALCJHB 72. In this case, an employee had laid a sexual harassment complaint against a colleague with the Commission for Conciliation, Mediation and Arbitration. On hearing this case, the Commissioner found that the conduct complained of could not be regarded as constituting sexual harassment as the complainant had not indicated that the conduct was unwelcome and/or unwanted. On review, the Labour Court held that the Commissioner had failed to consider the 2005 Code. For conduct to constitute sexual harassment, the 2005 Code does not require the accused employee to be aware that their conduct was unwelcome nor does it require the complainant to make it clear that the conduct is unwanted. The Labour Court held that in terms of the 2005 Code, the conduct complained of did constitute sexual harassment.
Difficulties with the 2005 code
As reflected in the above case, difficulties can arise for employers where certain provisions of the 2005 Code differ from provisions of the 1998 Code. The different provisions in the 2005 Code include:
- Expanding the scope of application of sexual harassment policies to include employers, employees and individuals dealing with the business.
- Broadening the definition of "sexual harassment" and providing a list of four factors to be considered in cases of sexual harassment. This definition is much clearer than the previous definition set out in the 1998 Code and gives guidelines as to the meaning of each of the factors.
- The element of "persistent" sexual advances is specified in the 1998 Code, but it is not present in the 2005 Code. The 2005 Code is broader and requires a general consideration of the conduct and the impact of these advances on the employee.
- The 2005 Code does not contain the provision in the 1998 Code which states that the recipient must make it 'clear' that the behaviour is considered offensive. The 2005 Code states that there are different ways in which an employee may indicate that sexual conduct is unwelcome, including walking away from, or not responding to, the perpetrator.
- Verbal forms of sexual harassment include the sending, by electronic means or otherwise, of sexually explicit text.
On 19 December 2018, the Minister of Labour issued a notice formally repealing the 1998 Code and effectively streamlining the obligations and guidelines for preventing sexual harassment in the workplace.
What employers must do
All employers should therefore ensure that their current policies consider sexual harassment as a form of unfair discrimination on the basis of sex and/or gender and/or sexual orientation, which infringes the rights of the complainant and constitutes a barrier to equity in the workplace. It should never be permitted or condoned and all complainants in sexual harassment matters have the right to follow the procedures in the policy and appropriate action must be taken by the employer. Lastly, it must be a disciplinary offence to victimise or retaliate against an employee who in good faith lodges a grievance of sexual harassment.
The procedure to be followed in cases of sexual harassment has been clearly set out in the 2005 Code and includes advising the complainant that they may choose to follow either a formal or informal procedure, and reassuring the complainant that they will not face job loss or any adverse consequences if either procedure is followed. In cases where an individual has decided to follow an informal procedure in dealing with a complaint, the employer should still assess the risk to other persons in the workplace, taking into account all relevant factors, including the severity of the sexual harassment and whether the perpetrator has a history of sexual harassment.
The severity of sexual harassment in the workplace has far reaching consequences. Employers who are found to breach sections 6(1) and 6(3) of the EEA will be held liable for damages under section 60 of the EEA if it is evident that they have failed to create preventative measures or eliminate sexual harassment in the workplace.
Employers are strongly encouraged to consider and update their current policies on sexual harassment and develop procedures to prevent present and future sexual harassment. This, in turn, will foster a safe workplace for employees.
Motheo Mfikoe is an Associate at Baker McKenzie Johannesburg and she wrote this article with the help of Julia Olley, who is a Candidate Attorney specialiasing in employment and compensation.