Misconduct - Sexual harassment .PDF - Pdf

Misconduct - Sexual Harassment By Johanette Rheeder Sexual harassment in the working environment is a form of unfair discrimination and is prohibited in terms of the Employment Equity Act (EEA) – section 6. Sexual harassment is unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace, taking into account all of the following factors: whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation, whether the sexual conduct was unwelcome; the nature and extent of the sexual conduct; and the impact of the sexual conduct on the employee. Sexual harassment has various consequences. The harassed employee can suffer from various consequences such as stress, fear, trauma and the conduct can affect her mental and physical health. It can also result in poor performance and a resistance to go back to the workplace. The accused often faces disciplinary action or criminal charges. Harassment can be a form of assault or crimen injuria. The LAC confirmed that sexual harassment is a dismissible offence in the case of Motsamai v Everite Building Products (Pty) Ltd1 . Sexual harassment can be based on the same or opposite gender and sexual orientation. There are different ways in which an employee may indicate that sexual conduct is unwelcome, including non-verbal conduct such as walking away or not responding to the perpetrator. Previous consensual participation in sexual conduct does not necessarily mean that the conduct continues to be welcome. Where a complainant has difficulty indicating to the perpetrator that the conduct is unwelcome, such a person may seek the assistance and intervention of another person such as a coworker, superior, counsellor, human resource official, family member or friend. The unwelcome conduct must be of a sexual nature, and includes physical, verbal or non-verbal conduct. A non-employee who is a victim of sexual harassment may also lodge a grievance with the employer of the harasser, where the harassment has taken place in the workplace or in the course of the harasser's employment. This is misconduct but not covered by the Employment Equity Act but section 11 of the Promotion of Equality and Prohibition of Unfair Discrimination Act 4 of 2000. In such a case the employee can also be charged with bringing the employer’s name into disrepute with his conduct and not necessary sexual harassment. The Protection from Harassment Act 17 of 2011 also now provides protection for harassed persons/employees. The employer can also face vicarious liability for the loss or damage suffered by such a harassed employee. The employer is also held liable in terms of the Employment Equity Act, section 60, if the employer does not take preventative action once the harassment has been brought to its attention. This exposes the employer to a compensation claim under the EEA, regardless any damage or loss suffered by the employee. In terms of the Employment Equity Amendment Act 47 of 2013, section 6, any claim for sexual harassment can now be referred to the CCMA and not the Labour Court any more. This makes legal recourse more accessible to employees. Employers must also consider developing a policy on sexual harassment, alternatively refer to the code of good conduct on handling sexual harassment in terms of the EEA.