INTRODUCTION
Majority of employees spend most of their time in the workplace. This makes workplaces fertile ground for building friendships and more. The challenge is when romantic advances are non-consensual, leading to sexual harassment claims.
The Code of Good Practice on the Prevention and Elimination of Harassment (‘the Code’) was introduced in 2022, to assist employers and employees to recognise and address harassment in the workplace.
Code of Good Practice on the Prevention and Elimination of Harassment
The Code offers clear guidance on recognizing, addressing, and preventing sexual harassment. According to the Code, sexual harassment is a form of unfair discrimination and is prohibited on the grounds of sex, gender, or sexual orientation.
In order to establish whether there was sexual harassment, a number of factors must be considered. Firstly the conduct must be unwanted. This may be indicated verbally, or with the employee walking away or not responding at all. Where the employees previously participated in consensual sexual conduct, that consent may be withdrawn. Unwanted conduct also includes instances where an employee informs a colleague about the unwanted conduct and asks for their intervention. Most importantly, the Code recognises that an employee may not indicate that the conduct is unwanted, however, the harasser/perpetrator ought to have known that the conduct is unwanted.
Secondly, in order to determine whether the unwanted conduct amounts to sexual harassment, it must be of a sexual nature. This include physical, verbal or non-verbal conduct, which may be expressed directly or indirectly. It may be in the form of attempted kisses, or sexual assault. The unwanted conduct may be in the form of staring, following, making romantic advances, or sending messages of a sexual nature. It is sexual harassment when an employee is explicitly threatened, or fears that non-complies with a sexually oriented request, may jeopardise their job. Innuendoes, suggestive jokes, graphic comments about a person’s body, inappropriate questions about a person’s sex life whistling of a sexual nature are also forms of unwanted conduct that may amount to sexual harassment. Unwanted conduct includes non-verbal conduct such as unwelcome gestures, indecent exposure or displaying or sending sexually explicit pictures or objects.
Victimisation occurs where an employee is victimised or intimidated for failing to submit to sexual advances, attention, proposals, or for complaining about gender-insensitive conduct. Quid pro quo harassment is where an owner or supervisor or manager or co-employee influences or attempts to influence an employee’s prospects of employment by coercing or attempting to coerce an employee to surrender to their sexual advances. Where a person in authority in the workplace tries to utilise their position to reward those who respond to their sexual advances, that is seen as a form of sexual favouritism. Notably, even a single instance of unwelcome sexual conduct may amount to sexual harassment.
It must always be borne in mind that sexual harassment impairs the dignity of an employee. When assessing whether the unwanted conduct amounts to sexual harassment, factors such as, the circumstances of the employee, the respective positions of the complainant and the alleged perpetrator must be taken into account.
Case law
In the Labour Appeal Court case of Amathole District Municipality v Commission for Conciliation, Mediation and Arbitration and Others (PA9/2018) [2022] ZALAC 119, the legal complexities of sexual harassment in the workplace were examined in detail. In the matter, the employee alleged that she had been sexually harassed by a colleague who she had shared an office with. The employee’s grievance was investigated by the employer, and it was found that there was no basis for her claim.
Dissatisfied with the internal outcome, the employee referred an unfair labour practice to the CCMA, where she claimed that the employer had failed to protect her. Her application was successful, with the CCMA awarding her R150 000 in damages. The employer took the matte on review in the Labour Court. Their review was unsuccessful, with the Labour Court finding that there was no reason to doubt the employee’s version of events, or question her credibility.
In contrast, the Labour Appeal Court (LAC) disagreed with the previous findings. The LAC pointed out inconsistencies in the employee’s evidence, especially when considering flirtatious messages she had sent to the alleged harasser. These messages, which included terms of endearment, were seen as contradictory to the employee’s claims of harassment. The messages included affectionate terms such as “my love”, “honey” and “cutie” which contradicted her allegations of harassment. The LAC emphasized that the burden of proof rested with the employee and, given the contradictions in her testimony, the claim was not substantiated.
The LAC also noted that the employer had taken reasonable steps to separate the employee from the alleged harasser and had offered counselling. As a result, the LAC concluded that there was insufficient evidence to support the claim of sexual harassment, overturning the previous ruling and upholding the employer’s appeal.
Power imbalances in sexual harassment cases
In the case of McGregor v Public Health and Social Development Sectoral Bargaining Council and Others (CCT 270/20) [2021] ZACC 14; (2021) 42 ILJ 1643 (CC); [2021] 9 BLLR 861 (CC); 2021 (5) SA 425 (CC); 2021 (10) BCLR 1131 (CC) (17 June 2021), a senior medical professional at a public hospital was found guilty of sexually harassing a newly qualified doctor under his supervision. The employee was accused of making unwelcome sexual suggestions, such as daring the victim to undress and swim naked, pressing himself against her while demonstrating procedures, and inappropriately touching her leg.
After an internal disciplinary inquiry, the employee was found guilty on four charges of misconduct related to sexual harassment, and dismissed. He referred an unfair dismissal dispute to the Public Health and Social Development Sectoral Bargaining Council. The arbitrator found him guilty on three of the four charges, and that he had been unfairly dismissed as another employee had not been dismissed, though he faced the same charges. His dismissal was also found to be procedurally unfair, and awarded him compensation equivalent to six months’ remuneration.
The former employee appealed the ruling, first to the Labour Court and later to the Labour Appeal Court, arguing that his actions did not amount to sexual harassment and did not justify dismissal. In both courts, it was found that dismissal was a fair sanction for an employee who was found guilty of three counts of sexual harassment. However, the courts confirmed that his dismissal had been procedurally unfair, and upheld the compensation award.
Despite the favourable compensation, the former employee appealed to the Constitutional Court, which dismissed his appeal and upheld the cross-appeal of the employer, reducing the compensation. The CC emphasized that sexual harassment is a reflection of broader power dynamics both in society and the workplace. In this case, the disparity in professional positions, gender, and age between the perpetrator and victim aggravated the conduct. The judgment also highlighted that such conduct, particularly when committed by a superior, can place the victim in an untenable position, fearing retaliation for rejecting advances or reporting misconduct. In the end, the Constitutional Court decided to reduce the compensation award to an equivalent of two months’ remuneration, emphasizing that employees are entitled to fair procedures and just labour practices.
Lack of policy
The case of Department of Health Western Cape v Public Health and Social Development Sectoral Bargaining Council and Others (C307/2022) [2024] ZALCCT 48 (24 July 2024), brings to the fore, the risk of not having a policy explicitly prohibits certain conduct in the workplace. In this matter, a senior staff member was dismissed for sending inappropriate WhatsApp messages to students who were under his supervision. The messages were explicit in nature, detailing the staff member’s intentions to engage in sexual relations with the students.
At the arbitration the arbitrator ruled in favour of the employee, and ordered re-instatement. According to the arbitrator, the workplace didn’t have a rule prohibiting such messages, and therefore the employee could not have breached a rule he didn’t know about. However, the employer challenged this decision at the Labour Court, arguing that the arbitrator had wrongly focused on the absence of an explicit rule. By his conduct, the employee had brought the employer’s name into disrepute. The arbitrator failed to take into account that many other students now knew about the messages. In addition, the arbitrator incorrectly found that the messages were ‘not repulsive to the average person who would read them’. He failed to take into account that the messages were of a sexual nature to a student.
The Labour Court found that the arbitrator had blundered in his judgment. The messages were not simply suggestive but explicitly conveyed the employee’s intention to pursue sexual relations with the students. The court ruled that misconduct does not have to be exhaustively detailed in a disciplinary code to be considered an offense. The behaviour, particularly by someone in a position of authority, was deemed to constitute sexual harassment and harm to the employer’s reputation.
This case highlights the critical importance of maintaining professional boundaries in the workplace. It also serves as a reminder that blurred lines between personal and professional relationships can result in serious legal consequences. Employers must ensure their policies on workplace relationships and harassment are clear, while employees must understand the risks associated with pursuing personal relationships in a professional environment.
Don’t Miss Out: Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace
Date: 12 February 2025
Time: 09:00 – 13:00
Location: Afrique Boutique Hotel, Boksburg
Is your workplace prepared to address harassment? Join us for a comprehensive workshop designed to help you understand and apply the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace. Our expert-led session will provide valuable insights on legal obligations, practical tools, and strategies to foster a respectful, harassment-free environment.
Why attend?
- Learn the latest best practices and legal guidelines.
- Gain clarity on the fine line between harmless flirting and sexual harassment.
- Enhance your company’s compliance and create a safer, more respectful workplace.
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