Recent amendments to legislation afford Commission for Conciliation, Mediation and Arbitration (CCMA) commissioners the authority to handle sexual harassment cases. Sexual harassment in the workplace can best be explained as a situation involving unwanted sexual advances or similar remarks that make the “victim” of the remarks feel uncomfortable.
First and foremost, it is important that the victim clearly indicates that the act is unwelcome by telling the person making the remarks or advances and walking away from the situation and/or reporting such actions to the employer or the manager. It is important to report such behaviour as soon as possible, irrespective if it is an on-going or a one-off incident.
Types of sexual harassment include:
Physical sexual harassment can range from physical contact and inappropriate touching, to even less direct physical acts. The reasonable person test would also be applied here to judge if it was harassment or not. If there is safety searches and routine checks done, same gender searching must take place so that there is no breach of one’s privacy, for example a female searching through the clothes of another female.
Verbal sexual harassment can be suggestive talking, jokes, inappropriate whistling, rude and offensive remarks, or even a hint in the direction of sex.
Non-verbal sexual harassment can be unwelcome gestures, indecent exposure, showing of indecent material, displaying or electronically sending explicit pictures by e-mail or cell phone to an employee or a colleague.
What must the employer do to avoid such situations?
- Give special training to managers, supervisors and shop stewards on sexual harassment and the need to eliminate it
- Promote dignity and equality in the workplace through policies and procedures, specifically a sexual harassment policy, that should:
- be displayed and employees should be made aware of this policy
- allow for informal of formal complaints (which could be resolved by discussion with or without the assistance of an appropriate third party)
- state clearly that harassment is a form of discrimination and could in serious cases lead to dismissal
- have clear reporting structures
Should there be a disciplinary hearing when such allegations are made?
When the employer becomes aware of the allegations, an investigation should follow. The employer can advise the victim to raise a formal grievance, thereby requiring further disciplinary action by the employer. If the victim does not want to raise a formal grievance, the employer can institute disciplinary steps against the offender when sufficient evidence was found during the investigation.
What happens when an employer turns a blind eye?
An employer who fails to take necessary steps to eliminate sexual harassment in the workplace and to comply with the Employment Equity Act, may be held liable for employees’ conduct.
Employers must act proactively and implement policies and procedures in the workplace to create a safe and secure working environment.
Contact the LWO at 0861 101 828 for assistance/advice on this subject. We are available 24/7.