Authors: Rabia Hassan and Maxine Naude
Sexual Harassment is defined as the ‘unwelcome conduct of a sexual nature that violates the rights of an employee’.[i] Sexual harassment may include unwelcome physical, verbal, or non-verbal conduct such as groping, sexual assault, sexual insinuations, sexual gestures, and sending sexually explicit pictures to another individual.[ii] An employee can indicate in many ways that the sexual conduct is unwelcome, such as walking away, rejecting, or not responding to sexual advances,[iii] however, this depends on the individual and the circumstances of each case.
Sexual harassment occurs where an individual such as an employer, supervisor, member of management or a co-employee influences, or attempts to influence, an employee’s employment circumstances in exchange for sexual favours. This type of harassment is defined as quid pro quo harassment.[iv] Sexual harassment also occurs where an employee is victimised or intimidated as a result of failing to submit to sexual advances.[v]
This article discusses the different civil legal routes available to those who have been sexually harassed in the workplace.
- DELICTUAL ROUTE
A delict is an omission or positive conduct that causes harm to an individual and is deemed to be wrongful according to the boni mores of society[vi]. This common law remedy provides an individual who has been subjected to sexual harassment with the right to approach a court and claim compensation from the wrongdoer.
Sexual harassment violates an individual’s fundamental right to equality, bodily integrity (corpus) and dignity (dignitas) and creates a barrier to substantive equality in the workplace.[vii] It has been characterised by the court in Campbell Scientific Africa (Pty) Ltd v Simmers and Others (2015) ZALCCT 62 as ‘the most heinous misconduct that plagues a workplace’.[viii] The psychological effect of sexual harassment can be severe and debilitating, affecting the wellbeing of the employee and leading to reduced productivity, commitment and work performance as well as creating an intimidating and hostile work environment. It is common for employees to rather resign than be subjected to sexual harassment.
In terms of the common law, the wrongdoer as well as the wrongdoer’s employer may be held liable for the sexual harassment. An employer is held vicariously liable for the wrongful conduct of his or her employee.[ix] This is due to the fact that the employer has a common law duty to protect employees against harm, and in this case sexual harassment, in the workplace. This was made clear by the court in Media 24 v Grobler (2005) 7 BALLR 649 (SCA):
‘It is clear that the legal convictions of the community require an employer to take reasonable steps to prevent the sexual harassment of its employees in the workplace and are obliged to compensate the victim for the harm caused should it negligently fail to do so… sexual harassment is unacceptable at any level in western society.’[x]
In the instance where, as a result of the sexual harassment, an employee has suffered an occupational detriment (for example, being dismissed, demoted, suspended, resigning, or being refused a promotion or salary increase), such employee has a right to approach a court and claim pecuniary loss from the wrongdoer in the form of loss of income and / or earning capacity[xi]. Moreover, where an individual has been hospitalised or has received psychological therapy as a result of the sexual harassment, the individual has a right to claim the medical costs incurred[xii].
In the instance where the individual has suffered mentally and psychologically as a result of the sexual harassment, he or she has a right to claim non-pecuniary loss in the form of general damages as a result of the pain and suffering, loss of amenities of life and psychological trauma incurred as a result of the sexual harassment[xiii].
- LABOUR ROUTE
The labour route is another legal avenue available to a victim of sexual harassment based on legislation that has been adopted to protect an employee against sexual harassment in the workplace. In terms of this route, an individual may approach the Commission for Conciliation, Mediation and Arbitration (CCMA) to enforce his or her rights.
It is common knowledge that sexual harassment impedes equal opportunity and fair treatment in the workplace. Unfair discrimination means differential treatment of an individual in the workplace that is discriminatory in nature (for example, on the basis of sex, gender, or sexual orientation), which cannot be justified and impairs the dignity of the individual.[xiv] The Employment Equity Act No. 5 of 1998 (EEA) and the Code of Good Practice on the handling of sexual harassment (Code) prohibit sexual harassment in the work environment on the basis that it constitutes unfair discrimination.[xv]
Every employer has a duty to be pro-active and take steps to promote equality in the workplace by creating an employment policy,[xvi] and ensuring a working environment where the dignity of employees is respected. In terms of the EEA, where sexual harassment does occur in the workplace (this includes work-related events outside the workplace such as company conferences), the conduct must be immediately reported to the employer, who must consult with all relevant parties and take the necessary steps to eliminate the conduct.[xvii] If the employer fails to take the necessary steps, such employer would be held liable in terms of the principle of vicarious liability for the sexual conduct of his or her employee.[xviii] Depending on the circumstances of the matter, the courts normally deem sexual harassment of an employee by a manager as serious misconduct justifying dismissal.[xix]
In the case of Motsamai v Everite Products (Pty) Ltd., 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 at the hands of his / her supervisor.’[xx]
- PROTECTION FROM HARASSMENT ROUTE
Depending on the nature and extent of the sexual harassment, an employee may apply for a protection order in terms of the Protection from Harassment Act No, 71. of 2011 (Harassment Act). The Harassment Act provides recourse to victims of harassment in both domestic and non-domestic relationships. It aims to promote certain rights such at the right to equality, the right to privacy, the right to dignity, the right to freedom and security of the person and the right to be free from all forms of violence.[xxi] The Harassment Act further recognises that harassment may include conduct that amounts to sexual harassment,[xxii] and therefore affords a victim of sexual harassment an effective remedy against a perpetrator by allowing the person to apply to court for a protection order against such behaviour.[xxiii]
A complainant may approach the nearest Magistrate’s Court and apply for a protection order by lodging the application and affidavits with the clerk of the court,[xxiv] who must immediately submit the application and affidavits to the court. The court is required to consider the application as soon as reasonably possible.[xxv]
If the court is satisfied that there is prima facie evidence that (i) the harasser is engaging or has engaged in harassment; (ii) harm is being or may be suffered by the complainant if the protection order is not issued immediately; and (iii) the protection afforded by the interim protection order is likely not to be achieved if prior notice is given to the harasser.[xxvi]
The interim protection order is served on the harasser who will be called to court on a return date to explain why the interim order should not be made final.[xxvii] Where the harasser fails to appear on the return date, or the court is satisfied that the application contains prima facie evidence that the harasser has engaged or is engaging in harassment, the court must issue a final protection order.[xxviii] If the harasser breaches a protection order, he or she commits an offence which is punishable with a fine or a period of imprisonment not exceeding 5 years.[xxix]
Amidst the pervasive scourge of Gender Based Violence (GBV) across South Africa and the helplessness that survivors or victims of GBV often feel, many individuals are unaware of the legal remedies available to them. Individuals who have been subjected to sexual harassment may choose to utilise one of the above routes of legal redress afforded to them.
There is a legal and societal ideology that sexual harassment is the most heinous form of misconduct that plagues the workplace and should not be accepted at any level in a company or business.
It is not only the responsibility of government to implement legislation to deal with the GBV issues facing South Africa, but corporations, organisations, and citizens also have a social, legal, and ethical obligation to help prevent GBV and sexual harassment from occurring.
Employers have a duty to ensure that this form of misconduct does not occur in the workplace by implementing clear workplace policies, grievance, and disciplinary procedures to constructively and purposefully deal with complaints timeously. In this instance, employers are encouraged to become familiar with the applicable employment law within South Africa, including the Code of Good Practice on the Handling of Sexual Harassment in the workplace.
[ii] Ibid, Section 5.3.1
[iii] Ibid, Section 5.2, Code
[iv] Ibid, Section 5.3.2, Code
[v] Ibid, Section 5.3.2, Code
[vi] Imvula Quality Protection (Pty) Ltd v Loureiro and Others 2013 (3) SA 407 (SCA) at para 33
[xi] LAWSA 2020 Damages at 198
[xii] Ibid at 196
[xiii] Ibid at 203
[xiv] A Govindjee & A vd Walt Labour Law in context 2nd Ed (2017) at p. 76
[xv] EEA supra note 8 at Section 6 and Code supra note 1 at Section 3.
[xvi] EEA supra note 8 at Section 5 and Code supra note 1 at Section 6(1)
[xvii] EEA supra note 8 at Section 60
[xx] Para 20
[xxii] Ibid, Section 1
[xxiii] Ibid, Section 2(1)
[xxiv] Ibid, Section 2(7)
[xxv] Ibid, Section 3
[xxvi] Ibid, Section 3(2)
[xxvii] Ibid, Section 3(3)(a) and (b)
[xxviii] Ibid, Section 9
[xxix] Ibid, Section18(3)