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MISCONDUCT - SEXUAL HARASSMENT

Sexual harassment in the working environment is a form of unfair discrimination and is prohibited on the grounds of sex and/or gender or sexual orientation. The Labour Appeal Court has confirmed that sexual harassment and or any form of harassment as per the Code of Good Practice – Elimination and Prohibition of Harassment in the Workplace, is a dismissible offence.


A non-employee who is a victim of sexual harassment may 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. In such a case the employee will probably be charged with bringing the employer’s name into disrepute with their conduct and not necessarily sexual harassment.


In a recorded CCMA matter, an employee (production engineer), was investigated after complaints were received about their conduct, from an anonymous caller. During the investigation, two female colleagues claimed that the employee had touched them in “inappropriate places” over a lengthy period.


The employee was charged with sexually harassing the two colleagues and was dismissed. The employee claimed that they had a habit of touching people with whom they were in contact to demonstrate friendship and denied any other wrongdoing.


The CCMA commissioner noted that the employer’s sexual harassment policy defined sexual harassment as “purposeful and sexually oriented behaviour that is bound to elicit a negative response.” The word “purposeful” implies that the employee should intend to harass and must be aware that their conduct is unwanted – the policy requires a blameworthy state of mind. In this case, it was not clear that the employee understood this contact to be of a sexual nature.


The commissioner found that, even on a balance of probabilities, the employer had failed to prove that the employee’s conduct was sexually-oriented or purposeful. The employee was reinstated with retrospective effect.

What to look for:

First, determine whether the employer has a policy on sexual harassment or not. If so, make sure what the requirements of the policy are. If no policy exists, use the code of conduct in terms of the Employment Equity Act and or Code of Good Practice – Elimination and Prevention of Harassment in the Workplace as guides. Sexual harassment is unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equality in the workplace, considering 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,

  • Establish the nature and extent of the sexual conduct; and

  • The impact of the sexual conduct on the employee.

Factors to establish sexual harassment:

The harassment must be unwelcome, and the harassed employee must have made it known to the harasser or the harasser was aware of it being unwanted attention or should have been aware it is harassment.


Sexual harassment can be based on the same or opposite gender and sexual orientation.


Unwelcome conduct:

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.


Nature and extent of the conduct:

The unwelcome conduct must be of a sexual nature and include physical, verbal, or non-verbal conduct.


Physical conduct of a sexual nature includes all unwelcome physical contact, ranging from touching to sexual assault and rape, as well as strip searches by or in the presence of the opposite sex.


Verbal conduct includes unwelcome innuendos, suggestions, hints, sexual advances, comments with sexual overtones, sex-related jokes or insults, graphic comments about a person’s body made in their presence or to them, inappropriate enquiries about a person's sex life, the whistling of a sexual nature and the sending of electronic means or otherwise of sexually explicit text or voice/video notes.


Non-verbal conduct includes unwelcome gestures, indecent exposure, and the display or sending by electronic means or otherwise of sexually explicit pictures, videos, or objects.


Sexual harassment may include but is not limited to, victimization, quid pro quo harassment, and sexual favouritism.


Victimization occurs when an employee is victimized or intimidated for failing to submit to sexual advances.


Quid pro quo harassment occurs where a person such as an owner, employer, supervisor, member of management, or co-employee, influences or attempts to influence an employee’s employment circumstances (for example engagement, promotion, training, discipline, dismissal, salary increments, or other benefits) by coercing or attempting to coerce an employee to surrender to sexual advances.


This could include sexual favouritism, which occurs when a person with authority in the workplace rewards only those who respond to their sexual advances.

A single incident of unwelcome sexual conduct may constitute sexual harassment.


Impact of the conduct:

The conduct should constitute an impairment of the employee’s dignity, taking into account the circumstances of the employee and the respective positions of the employee and the perpetrator in the workplace.


What must the investigator prove at the disciplinary enquiry?

  • One or more than one act of sexual harassment took place;

  • It was sexual in nature;

  • It was unwelcomed and the harasser knew it was unwelcome conduct or should have known it was unwelcome;

  • The policy of the employer and that the harasser knew about it;

  • It tarnished the dignity of the harassed employee;

  • If the harassed employee is a subordinate;

  • The effect of the harassment on the harassed; and

  • Any evidence to corroborate the harassment.


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