Identify and Speak Out Against Sexual Harassment in the Workplace

Behaviour or conduct from your colleagues can sometimes make you feel slightly nervous or worried, even though you cannot put your finger on the reason. Not all the behaviour from colleagues must be labelled as sexual harassment.

The reality is that sexual harassment behaviour can sometimes be so inconspicuous that, even though it makes you feel queasy, you do not want to speak out. In certain instances the sexual harassment is blatant and tolerated in your work environment to the extent that you do not want to speak up or you think that you are overreacting.

What is regarded as sexual harassment?

Guidance is given in the Code of Good Practise on the Handling of Sexual Harassment Cases (Code). The purpose of the Code is to eliminate sexual harassment in the workplace. The Code defines Sexual Harassment in Item 3 as unwanted conduct of a sexual nature, therefore behaviour that is not mutual or welcomed.

The Code differentiate between sexual attention and persistent sexual attention. The latter occurs when you have made it clear that the behaviour/attention is considered to be offensive. Remarkable enough, the word ‘persistent’ in this context does not refer to ‘more than one’, but unambiguously stated that even one incident of unwanted sexual attention can be regarded as sexual harassment.

Forms of Sexual Harassment

Unwanted sexual attention or sexual harassment is not limited to physical contact only, but in terms of Item 4 of the Code, include unwelcome physical, verbal or non-verbal conduct. (The list below is not a closed list)

• Physical conduct of a sexual nature includes all unwanted physical contact, ranging from touching to sexual assault and rape, and includes a strip search by, or in the presence of, the opposite sex;
• Verbal forms of sexual harassment include unwelcome innuendoes, suggestions and hints, sexual advances, comments with sexual overtones, sex-related jokes/insults or unwelcome graphic comments about a person’s body made in their presence or directed toward them, unwelcome and inappropriate enquiries about a person’s sex life and unwelcome whistling directed at a person or group of persons;
• Non-verbal forms of sexual harassment include unwelcome gestures, indecent exposure and the unwelcome display of sexually explicit pictures and objects.
• Quid pro quo harassment occurs where an owner, employer, supervisor, member of management or co-employee, undertakes or attempts to influence the process of employment, promotion, training, discipline, dismissal, salary increment or other benefit of an employee or job applicant, in exchange for sexual favours.
• Sexual favouritism exists where a person who is in a position of authority rewards only those who respond to his/her sexual advances, whilst other deserving employees who do not submit themselves to any sexual advances are denied promotions, merit rating or salary increases.

Sexual Harassment and Dismissal

Guidance in terms of dismissal and sexual harassment is found in the Code, Item 7(5)(c). This provision echoes the provision in Schedule 8: Code of Good Practice: Dismissal and provides that an employee may be dismissed for serious misconduct and repeated offences. Bear in mind that in terms of the Code, even one incident of harassment can be regarded as sexual harassment. The Code confirms, in item 7(5)(b), that sexual harassment or continued harassment, after warnings, are dismissible offences.  I want to go as far as to state that the Code and your employer’s Disciplinary Code or Policy on Sexual Harassment should be viewed as warnings.

The Labour Appeal Court took a very stern stance in this regard. In Motsamai v Everite Building Products (Pty) Ltd [2011] 2 BLLR 144 (LAC), the court stated that “Sexual harassment is the most heinous misconduct that plagues a workplace; not only is it demeaning to the victim, it undermines the dignity, integrity and self-worth of the employee harassed. The harshness of the wrong is compounded when the victim suffers it at the hands of his/her supervisor. Sexual harassment goes to the root of one’s being and must therefore be viewed from the point of view of a victim: how does he/she perceive it, and whether or not the perception is reasonable…” (Own Emphasis)

It is clear from the above that perception from the person who was subjected to unwanted sexual attention/harassment, is the key.

A word of Caution

Being subjected to unwanted sexual attention, or harassment and being falsely accused of unwanted sexual attention or harassment, is equally devastating. The Labour Court in NUM obo Salaminah v the CCMA & 2 others (Case number JR1416/19), the employee’s dismissal was upheld. The background that leads to the dismissal was a grievance lodged by Salaminah against her Manager. She claimed sexual harassment in the form of ‘quid pro quo’ alleging that her Manager said that if she slept with him, he will give her a car allowance.

Upon investigation and through the evidence of witnesses the discussion never took place, in fact one of the witnesses testified that that ‘some time before the incident of 24 February 2014 the Applicant had been speaking to him and had told him that if (her manager) did not give her a car allowance she would blackmail him by raising a sexual harassment grievance. At the time, he thought she was only joking and had thought nothing of it until she lodged her grievance against (her manager)…’

Salaminah was charged with inter alia ‘falsely and/or maliciously accusing (her manager) of sexual harassment’.  After her dismissal the CCMA upheld her dismissal and on review to the Labour Court, the dismissal was still upheld.

Unwanted sexual attention, sexual harassment or being falsely accused of unwanted sexual attention or sexual harassment, is very serious. There is a duty on your employer to vigorously, yet with sensitivity, investigate each complaint.

The next step – recourse

The first step is to report any unwanted sexual attention or sexual harassment as soon as possible. Follow the internal Sexual Harassment Policy or other Internal Policies/Codes. In the absence of a Policy, report the incident to your direct supervisor or manager and if he/she is the person who acted inappropriately, report the incident directly to their manager.

The Code of Good Practise on Sexual Harassment provides guidelines to your employer on which process to follow when cases of sexual harassment are reported. The Code provides that employers should create a safe working environment for employees, and should cases of sexual harassment be reported, there is a duty on the employer to investigate the allegations and to take disciplinary action against the perpetrator where necessary.

Remember that sexual harassment is not only a workplace issue, but a criminal offence. You do have recourse and you are protected in terms of legislation.

Conclusion

Sexual harassment is prohibited in the workplace and is regarded as a serious offence. MISA has a ‘Violence and Harassment in the Workplace’ Policy and is actively advocating for the adoption of the C190 – Violence and Harassment Convention, 2019 (No. 190) in South Africa.

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