What constitutes sexual harassment?
Sexual harassment may include but is not limited to, unwelcome physical, verbal or non-verbal conduct.
It is an employer’s duty to create and maintain a working environment in which the dignity of all employees is respected. All employers and employees must maintain a working climate where sexual harassment is unacceptable and must also ensure that individuals such as customers, suppliers and job applicants are not subjected to sexual harassment. Disciplinary action and appropriate measures must be taken against perpetrators in accordance with the organisation’s disciplinary code.
In the case of SA Metal Group (Pty) Ltd v CCMA and Others the Labour Court found an arbitration award was made in the absence of considering the Code of Good Practice on handling sexual harassment cases.
The facts of the case involved an employee who engaged in inappropriate verbal banter with the complainant. The employee told the complainant that “I cannot wait for summer to see you strut your stuff” and asked her if she was offering to play with him.
The CCMA Commissioner found that the comments did not constitute sexual harassment as the comments made by the employee did not contain explicit sexual connotation and further that the complainant did not make the employee aware that the verbal banter was unwelcome.
The Labour Court came to a different conclusion after taking the Code of Good Practice into consideration. The Labour Court found that the employee’s comments fell within the definition of verbal sexual harassment contained in the code and that it amounted to ‘unwelcome innuendo’.
The Code of Good Practice does not require verbal communication to contain explicit sexual connotation for it to qualify as sexual harassment. The fact that the complainant showed signs of discomfort is proof that the conduct is unwelcome.
The above case emphasises the importance of considering the Code of Good Practice in handling sexual harassment cases at the workplace.
ABOUT THE AUTHOR
Risha Singh has been involved in the Legal Fraternity for more than 5 years. She is a qualified Attorney, admitted in 2012. She completed her articles of clerkship at Legal Aid South Africa and thereafter branched into the private sector. She is currently a SEESA Labour Legal Advisor.