Preventing harassment and violence in South African workplaces
Author: Sibongiseni Masina – Candidate Attorney
* Article supervised by Jean Ewang
In terms of the South African Employment Equity Act (Section 6(3)), employers have a central responsibility to ensure that the working environment is safe and free of discrimination for all employees. The losses associated with discrimination and workplace violence include reduced efficiency and productivity, the deterioration of product or service quality and detrimental effects on a company’s brand and reputation.
The current labour laws which directly and indirectly address harassment include: (i) the Occupational Health and Safety Act; (ii) the Employment Equity Act, supplemented by Codes of Good Practice on the Handling of Sexual Harassment Cases in the workplace (2005); and (iii) the Harassment Provision in the Code of Good Practice on the Integration of Employment Equity into Human Resource Policies and Practices (2005). These laws and codes are clear on legal obligations placed on employers and employees in creating safe working environments and ensuring they are free from violence and harassment.
In 2019, the International Labour Organization (ILO) adopted a new Violence and Harassment Convention. The Commission for Employment Equity (CEE) has recently announced that it will advise the Minister of Employment and Labour to recommend to NEDLAC and Parliament to ratify this ILO Convention as a matter of urgency.
As part of the preparations for readiness 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.
RECENT CASE LAW
Public Servants Association of South Africa obo Ngcobo/KZN Department of Education  4 BALR 408 (CCMA)
The Court had to decide on whether the employer was able to prove on a balance of probabilities that the alleged sexual harassment did not occur, and, if it is not able to discharge that onus, whether it did all that was required of it to consult relevant parties and to take necessary steps to eliminate the alleged sexual harassment.
The applicant, a teacher, became the target of complaints by colleagues; the complaints were to such an extent that she developed mental health problems. Subsequently she was placed at Olwambeni Primary School. The principal of the school was Mr Sishi. The applicant alleged that during the 6 month period that she worked at the school she was sexually harassed by the principal. She lodged a formal complaint with the circuit manager that she had been sexually harassed by the principal. 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 litany of incidents on which the applicant had relied to prove her claim of sexual harassment. Since the applicant and the principal were both composed witnesses, the matter could not be decided on credibility. However, the applicant's evidence had the ring of truth. The Commissioner, accordingly, 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. Furthermore, 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.
SEEMA/McDONALDS  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).
Mr Seema was found guilty of two allegations and was dismissed. He denied the charges, and claimed that the failure of the complainants to report the alleged incidents of sexual harassment immediately means that the respondent did not comply with its own policies or alternatively that there were no incidents of sexual harassment. The Commissioner held that the complainants’ delay in making their complaints did not in itself render the dismissal unfair, because there were many reasons why victims of sexual harassment might not immediately come forward. In this case, both complainants had reasons for delaying the complaint. The Commissioner also rejected the applicant's claim that the respondent had not investigated the matter. The unchallenged evidence of the complainants indicated that the applicant had molested them, as they claimed. By contrast, the applicant had been a poor witness. His claim that the complainants had made the complaints to avoid being disciplined themselves was an afterthought. The applicant had correctly been found guilty of sexual harassment, for which dismissal was warranted and hence upheld.
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