Article contributed by Umhlanga Attorney, Fawzia Khan
The incidences of sexual harassment in the workplace continues to plague the South African labour and economic sector of society, as it does in other parts of the world. It reinforces the imbalance of equality in the workplace and drives even further the shocking culture of gender based violence in this country.
The Employment Equity Act provides that an employer may be held liable for damages if it unable to prove that it did all that was reasonable to ensure that the unfair discrimination does not take place. The Labour Appeal Court has referred to sexual harassment in the workplace as “the most heinous misconduct that plagues a workplace”. Employers have an obligation to protect their employees and a duty to be proactive. They cannot sit back and wait to be informed of what is happening before taking action. Our courts have made hefty damages awards in favour of the victims.
In April 2021, a victim of sexual harassment was awarded almost R4 million in damages. The employer was ordered to pay damages, jointly with the perpetrator “J” to the victim “E’, when J forcefully tried to kiss E. The employer simply asked J not to visit E’s workplace, and E was asked to go on “special leave”. She eventually resigned. About 6 months after the assault, the employer held an internal enquiry. J was found guilty of “forcing himself on a female subordinate and attempting to kiss her”. He was then suspended without pay for two weeks. E took the matter to the High Court and the court found that the employer “failed to provide a safe working environment for E, which had catastrophic consequences for her emotional and psychological wellbeing. This rendered her continued employment intolerable.”
This case demonstrates that employers are duty bound to provide a safe working environment including the obligation to ensure that the workplace free of sexual harassment. In June 2021, the Constitutional Court handed down its judgement in a matter brought by a medical doctor. In that case Dr. McG was employed as head of anaesthesiology and he was found guilty on four counts of sexual harassment. He behaved as a sexual predator towards a young medical student. The doctor was dismissed for his inappropriate sexual advances. He took his dismissal to the Bargaining Council, saying that his dismissal was in breach of his right to fair labour practice. The matter eventually went to the Constitutional Court, who held that even though there was a non- compliance with the procedural process and for which the doctor ought to have been compensated, the misconduct of the doctor’s offence was extremely serious and that it was unjust for a man to be paid close to R1 million as compensation and it reduced the amount of his compensation. Sending inappropriate sexual messages, memes or emojis on multimedia platforms to a work colleague, could also constitute sexual harassment. It is imperative that employers and businesses must be proactive to protect their employees of sexual harassment.
Employers should have a code of practice that is in keeping with Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace. Talk to us about ensuring your business is compliant in terms of this code of practice.
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