The South African legal fraternity is joining voices in support of the 2019 campaign for 16 Days of No Violence against Women and Children (25 November to 10 December), with a call to strengthen responses to sexual harassment and violence in the workplace.
Employers have a principal responsibility to ensure that the working environment is safe and free of discrimination for all employees as stipulated by the South African Employment Equity Act (section 6(3)). Other labour laws also address harassment, including the Occupational Health and Safety Act.
Current labour laws directly and indirectly place emphasis on legal obligations for employers and employees to create working environments that are free from violence and indecent incidents. These include the Occupational Health and Safety Act; the Employment Equity Act, supplemented by Codes of Good Practice on the Handling of Sexual Harassment Cases in the workplace (2005); and the Harassment Provision in the Code of Good Practice on the Integration of Employment Equity into Human Resource Policies and Practices (2005).
Yet, more can be done by employers to tackle the sexist and patriarchal attitudes that are at the core of workplace sexual harassment, says Ms Jean Ewang a director in the employment law department of the legal firm Lawtons Africa in Johannesburg.
Ewang says that the call by the Commission for Employment Equity (CEE) for South Africa to align with the latest International Labour Organization Violence and Harassment Convention and use it as a basis for developing a comprehensive code of practice on the elimination of violence and harassment in the world of work is a step in the right direction.
As part of the preparations and aligning with the ILO Convention, the CEE is reviewing the current employment equity policy instruments with the aim of developing a comprehensive Code of Good Practice on the elimination of violence and harassment in the World of Work. The new Code is expected to be published by June 2020.
“We often encounter situations in which the target of sexual harassment is fearful of lodging a complaint while the employers, even when faced with substantiating evidence, are frequently unwilling or uncertain how to respond. Making the legal foundations including codes of practice more robust and their greater enforcement can deter such incidents which reduce productivity, service quality and have detrimental effects on individuals as well as organisations’ brands and reputation,” says Senior Associate Attorney in the employment law department of Lawtons Africa Ms Phetheni Nkuna.
Two recent legal cases, both of which ruled in favour of complainants, indicate that this process of addressing sexual harassment in the workplace has gained some ground in favour of the employee say Nkuna.
Public Servants Association of South Africa obo Ngcobo/KZN Department of Education [2019] 4 BALR 408 (CCMA)
The CCMA had to decide whether the employer was able to prove, on a balance of probabilities, that the alleged sexual harassment did not occur. If the employer was not able to discharge that onus, did they do all that was required of them to consult with the relevant parties and to take necessary steps to address alleged sexual harassment.
The applicant, a teacher, became the target of complaints by colleagues; she developed mental health problems and lodged a formal complaint that she had been sexually harassed by the principal of her school. The department investigated the matter and found no basis for the allegations. The applicant sued the department for damages.
The Commissioner noted that she was confronted with two conflicting versions of the many incidents on which the applicant had relied to prove her claim of sexual harassment.
Since the applicant and the headmaster were both composed witnesses, the matter could not be decided on credibility. However, the applicant's evidence had the ring of truth.
The Commissioner found that the respondent had failed to discharge the onus of proving that sexual harassment had not occurred as stipulated in Section 11 of the EEA. The department had waited for about a year before reacting to the applicant's complaints. The offer to transfer the applicant to another school came too late. The applicant was awarded compensation of R50 000.
EEMA/McDONALDS [2019] 3 BALR 262 (BCRCAT)
The applicant, a manager of one of the respondent's outlets, was dismissed after two female employees alleged that they had been sexually harassed by him. The charges that he was accused of are as follows:
• Unwelcomed physical contact by touching and attempting to kiss victim on the mouth in the bathroom of people with disabilities.
• Passed and directed unwelcome verbal remarks containing sexual overtones to her and he stated she must come with him to his house as it was cold on that day.
• He had also directed unwelcome verbal remarks containing sexual overtones to another female subordinate by enquiring if:
- Her partner satisfies her in bed.
- In cases where her partner is working night shift, does she sleep alone?
- On numerous occasions he would say to her "o pakile" (a reference to a voluptuous body).
He denied the charges, and claimed that his dismissal was unfair because the complainants had delayed lodging their complaints and that the Employer had not investigated the complaints before instituting disciplinary action, as required by its code on sexual harassment.
The Commissioner held that the complainants’ delay in making their complaints (one had not done so until after he resigned) did not in itself render the dismissal unfair, because there were many reasons why targets of sexual harassment might not immediately come forward.
In this case, both complainants say Ewang had reasons for delaying the complaint. The Commissioner also rejected the dismissed employee’s claim that the Employer had not investigated the matter. The unchallenged evidence of the complainants indicated that the dismissed employee had molested them, as they claimed. His dismissal was upheld.
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