As an employer you have a duty to ensure a safe working environment for your employees – this includes protecting your employees against potential sexual harassment.
The Employment Equity Act No 55 of 1998 (EEA) classifies harassment based on sex or gender as unfair discrimination which is strictly prohibited in the workplace. The legislature introduced the Code of Good Practice on Sexual Harassment which is aimed at assisting employers in combating sexual harassment in the workplace. The code defines sexual harassment as: “…unwanted conduct of a sexual nature. The unwanted nature of the harassment distinguishes it from behaviour that is welcome and mutual”. The “unwanted behaviour” will include, physical, verbal and non-verbal conduct.
What if sexual harassment occurs in my business?
In the event that sexual harassment was committed by an employee in the workplace and has been reported to the employer within a reasonable amount of time, the employer must:
- Consult all the parties involved in the alleged misconduct.
- Take all the steps necessary to put a stop to the alleged sexual harassment. If the employer fails to take the necessary steps, he will be held liable for the sexual harassment as if he himself had committed the sexual harassment and will only escape liability if it can be proven by the employer that reasonable steps have been put in place to prevent sexual harassment in the workplace.
In the event that an employer is found liable for the sexual harassment, both compensation and damages can be awarded against the employer, irrespective of whether the employee resigned. In the case of Ntsabo v Real Security (2003) the court found that the employer did not follow reasonable steps to protect his employee after she reported having been sexually harassed by her supervisor. The employer was held liable for R70 000.00 in damages, including future medical costs as well as pain and suffering. In addition to the aforementioned damages, the employer was held liable for another R12 000.00 for constructive dismissal.
Steps employers must take when sexual harassment occurs
In another case, Piliso v Old Mutual Life Assurance Company (2006) the court determined that the following are the minimum steps that must be taken by the employer once the employee has informed the employer of the harassment:
- The employer must leave no stone unturned to try and find the culprit.
- Immediate steps must be taken to give the employee support (such as counselling).
- The employer must keep the employee informed of all the steps taken in the investigation.
- The employer must take all reasonable steps to avoid the repetition of such conduct.
In the abovementioned case, the court held the employer liable for constitutional damages, despite the harasser not being identified as an employee of the employer. The finding was based on the fact that the employer did not take the steps above.
Employers must make sure that they have policies and measures in place to ensure that instances of sexual harassment do not occur in the workplace. It is accordingly strongly suggested that all employers introduce sexual harassment policies in their workplace and provide training on sexual harassment to ensure that all employees are aware of what constitutes sexual harassment.
ABOUT THE AUTHOR
Carla Pauw graduated with her LL.B degree from Stellenbosch University in 2015, and was admitted as an Attorney of the High Court in July 2016. She is currently in the process of completing her LLM (Labour Law) degree at the University of Stellenbosch. Carla works as a legal advisor for SEESA Labour at our Cape Town office.