Sexual harassment is defined as a form of unfair discrimination against persons based on the grounds of sex, gender and/or sexual orientation. It has also been described as persistent, unsolicited and unwanted sexual advances or suggestions from one person to another. It is a misconduct that is deemed to be a serious offence which can, and has, led to the dismissal of employees found charged and found guilty of such an offence.
The Code of Good Practice for Handling of Sexual Harassment Cases sets out the guiding principles and procedures to be followed by an employer when dealing with sexual harassment. The employer is to create and maintain an environment where the dignity of employees is respected. Victims of sexual harassment should not feel that their grievances or complaints will be ignored or trivialised. Nor should they be afraid of reprisals.
The employer is further required by the Code of Good Practice for Handling of Sexual Harassment in the Workplace, 2005, to develop clear procedures to deal with sexual harassment, ensuring the resolution of problems in a “…sensitive, efficient and effective way.”
A case of sexual harassment can be dealt with following both an informal or procedure. Where a formal procedure is adopted, the Code of Good Practice relating to dismissals in Schedule 8 of the Labour Relations Act provides that an employee may be dismissed for serious misconduct or repeated offences, sexual harassment or continued harassment after warnings qualify as dismissible offences.
In the case of J v M Ltd (1989) 10 ILJ 755 (IC), the industrial court upheld the dismissal of a senior executive for his inappropriate behavior. It was found that sexual harassment, whether it involves members of the opposite or the same sex, was a serious matter and required the attention of employers. The court further stated such behavior, dependant on the form it takes, violates the victim’s right to bodily and personality integrity.
According to John Grogan’s Workplace Law, an employee who alleges that they have been harassed must subjectively feel that the conduct in question was offensive. The subjective feeling must be assessed against an objective standard. The employer, through full investigation of the matter, is to prove that the conduct qualified as sexual harassment and a proper disciplinary hearing is to be held.
The majority of cases where employees have been dismissed for sexual harassment have been upheld by the courts and other forums. In other cases, dismissal as a sanction was considered to be too harsh. In Sadulla v Jules Katz & Co Ltd (1997) 18 ILJ 1482 (CCMA), the evidence showed that the employees had engaged in ‘idle sex talk’ and the employer was unable to establish who had started the conversation. In this matter, the dismissal of one of the employees was ruled to be unfair.
More seriously looked upon are cases where sexual harassment has been conducted by senior employees toward their subordinates. In 2016, the Grahamstown High Court found both an employer and a senior employer jointly and severally liable for damages suffered by a junior female employee who had been sexually harassed at work. This case serves to confirm and enforce the view that employers have a duty to take reasonable care of the safety of its employees. It further served to confirm that senior employees are in a position of authority which makes them responsible for assisting the employer in maintaining a work environment where employees are safe.
Each case of alleged sexual harassment is to be viewed in the context of the situation and does not always warrant a dismissal. A remark or comment during a social event between employees where the ribald conversation is considered a norm would not warrant dismissal.
About the Author
Charlene Botha is a Consumer Protection and POPI and Labour Legal Advisor at SEESA Port Elizabeth. Prior to joining SEESA, she practiced as a Civil Litigation Attorney.