|
|
Marius Scheepers & Company Attorneys |
|
|
CODE OF GOOD
PRACTICE ON THE HANDLING OF SEXUAL HARASSMENT CASES (General Notice
1367 in Government Gazette 19049 of 17 July 1998) Notice is hereby
given in terms of section 203 (2) of the Labour Relations Act, 1995 (Act
66 of 1995), that the National Economic Development and Labour Council has
issued under section 203 (1) of that Act a code of good practice on the
handling of sexual harassment cases as set out in the Schedule. SCHEDULE1 Introduction (1) The object of this code is to eliminate sexual harassment in the
workplace. (2) This code provides appropriate procedures to deal with the problem
and prevent Rs recurrence. (3) This code encourages and promotes the development and implementation
of policies and procedures that will lead to the creation of workplaces
that are free of sexual harassment where employers and their employees
respect one another’s integrity, dignity, privacy and right to equity in
the workplace. 2 Application of the code (1) Although
this code is intended to guide employers and their employees, the
perpetrators and victims of sexual harassment may include: (1) Owners. (2) Employers. (3) Managers. (4) Supervisors. (5) Employees. (6) Job applicants. (7) Clients. (8) Suppliers. (9) Contractors. (10) Others having dealings with the
business. (2) Nothing
in (1) above grants employers the authority to take disciplinary action in
respect of non-employees. (3) 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. 3 Definition of sexual harassment (1) Sexual harassment is unwanted conduct of a sexual nature.
The unwanted nature of sexual harassment distinguishes it from
behaviour that is welcome and mutual. (2) Sexual attention becomes sexual harassment if- (a) the behaviour is persisted in, although a single incident of
harassment can constitute sexual harassment; and/or (b) the recipient has made it clear that the behaviour is considered
offensive; and/or (c) the perpetrator should have known that the behaviour is
regarded as unacceptable. 4 Forms of sexual harassment (1) Sexual harassment may include unwelcome physical, verbal or
non-verbal conduct, but is not limited to the following examples: (a) Physical conduct of a sexual nature
includes all unwanted physical contact, ranging from touching to sexual
assault and rape, and includes a strip search by or in the presence of the
opposite sex. (b) Verbal forms of sexual harassment
include unwelcome innuendoes suggestions and hints, sexual advances,
comments with sexual overtones, sex-related jokes or insults or unwelcome
graphic comments about a person’s body made in their presence or to
them, unwelcome and inappropriate enquiries about a person’s sex life,
and unwelcome whistling at a person or group of persons. (c) Non-verbal forms of sexual harassment
include unwelcome gestures, indecent exposure, and the unwelcome display
of sexually explicit pictures and objects. (d) Quid pro quo harassment occurs where an
owner, employer, supervisor, member of management or co-employee
undertakes or attempts to influence or influences the process of
employment, promotion, training, discipline, dismissal, salary increments
or other benefits of an employee or job applicant in exchange for sexual
favours. (2) Sexual favouritism exists where a person who is in a position of
authority rewards only those who respond to his or her sexual advances,
while other deserving employees who do not submit to sexual advances are
denied promotions, merit rating or salary increases. 5 Guiding principles (1) Employers
should create and maintain a working environment in which the dignity of
employees is respected. A
climate in the workplace should also be created and maintained in which
victims of sexual harassment will not feel that their grievances are
ignored or trivialised, or fear reprisals.
Implementing the following guidelines can assist in achieving these
ends: (a) Employers/management and employees are
required to refrain from committing acts of sexual harassment. (b) All employers/management and employees have a role to play in
creating and maintaining a working environment in which sexual harassment
is unacceptable. They should
ensure that their conduct does not cause offence and they should
discourage unacceptable behaviour on the part of others. (c) Employers/management should attempt to
ensure that persons such as customers, suppliers, job applicants and
others who have dealings with the business are not subjected to sexual
harassment by the employer or its employees. (d) Employers/management are required to
take appropriate action in accordance with this code when instances of
sexual harassment which occur within the workplace are brought to their
attention. (2) This code recognises the primacy of collective agreements regulating
the handling of sexual harassment cases, and it is not intended as a
substitute for disciplinary codes and procedures containing such measures
that are the product of collective agreements or the outcome of joint
decision making by an employer and a workplace forum.
However, collective agreements and policy statements should take
cognisance of and be guided by the provisions of this code. 6 Policy statements (1) As a first step in expressing concern about and commitment to dealing
with the problem of sexual harassment, employers should issue a policy
statement stipulating the following: (a) All employees, job applicants and other persons who have dealings
with the business have the right to be treated with dignity. (b) Sexual harassment in the workplace will
not be permitted or condoned. (c) Persons who have been or are being
subjected to sexual harassment in the workplace have the right to lodge a
grievance about it and appropriate action will be taken by the employer. (2) Management
should have the positive duty to implement the policy and take
disciplinary action against employees who do not comply with the policy. (3) A policy on sexual harassment should also explain the procedure which
should be followed by employees who are victims of sexual harassment.
The policy should also state the following: (a) Allegations of sexual harassment will
be dealt with seriously expeditiously, sensitively and confidentially. (b) Employees will be protected against
victimisation, retaliation for lodging grievances and from false
accusations. (4) Policy statements on sexual harassment should be communicated
effectively to all employees. 7 Procedures Employers
should develop clear procedures to deal with sexual harassment.
These procedures should ensure the resolution of problems in a
sensitive, efficient and effective way. (1) Advice and assistance Sexual
harassment is a sensitive issue and a victim may feel unable to approach
the perpetrator, lodge a formal grievance or turn to colleagues for
support. As far as is
practicable, employers should designate a person outside of line
management who victims may approach for confidential advice.
Such a person- (a) could be a person employed by the
company to perform that function among other things, a trade union
representative or co-employee or an outside professional; (b) should have the appropriate skills and
experience or be properly trained and given adequate resources; (c) could be required to have counselling
and relevant tabour relations skills and be able to provide support and
advice on a confidential basis. (2) Options
in resolving a problem (a) Employees should be advised that there
are two options in resolving a problem relating to sexual harassment. Either an attempt can be made to resolve the problem in an
informal way or a formal procedure can be embarked upon. (b) The employee should be under no duress
to accept one or the other option. (3) Informal
procedure (a) It may be sufficient for the employee concerned to have an
opportunity to explain to the person engaging in the unwanted conduct that
the behaviour in question is not welcome, that it offends them or makes
them uncomfortable, and that it interferes with their work. (b) If the informal approach does not resolve the matter satisfactorily,
if the case is severe or if the conduct continues, it may be more
appropriate to embark upon a formal procedure.
Severe cases may include: Sexual assault, rape, a strip search and
quid pro quo harassment. (4) Formal
procedure Where a formal
procedure has been chosen by the aggrieved, such a procedure for resolving
the grievance should be available and should - (a) specify with whom the employee should
lodge the grievance; (b) make reference to time frames which
allow the grievance to be dealt with expeditiously; (c) provide that if the case is not
resolved satisfactorily, the matter can be dealt with in terms of the
dispute procedures
contained in item 7 (7) of this code. (5) Investigation
and disciplinary action (a) Care should be taken during any
investigation of a sexual harassment grievance that the aggrieved person
is not disadvantaged, and that the position of other parties is not
prejudiced if the grievance is found to be groundless. (b) The Code of Good Practice regulating
Dismissal contained in Schedule 8 to the Labour Relations Act, 1995 (Act
66 of 1995) (“the Act”), reinforces the provisions of Chapter Vill of
the Act and provides that an employee may be dismissed for serious
misconduct or repeated offences. Serious
incidents of sexual harassment or continued harassment after warnings are
dismissable offences. (c) In cases of persistent harassment or single incidents of
serious misconduct, employers ought to follow the procedures set out in
the Code of Good Practice contained in Schedule 8 to the Act. (d) The range of disciplinary sanctions to
which employees will be liable should be clearly stated, and it should
also be made clear that it will be a disciplinary offence to victimise or
retaliate against an employee who in good faith lodges a grievance of
sexual harassment. (6) Criminal
and civil charges A victim of
sexual assault has the right to press separate criminal and/or civil
charges against an alleged perpetrator, and the legal rights of the victim
are in no way limited by this code. (7) Dispute
resolution Should a
complaint of alleged sexual harassment not be satisfactorily resolved by
the internal procedures set out above, either party may within 30 days of
the dispute having arisen, refer the matter to the CCMA for conciliation
in accordance with the provisions of section 135 of the Act.
Should the dispute remain unresolved, either party may refer the
dispute to the Labour Court within 30 days of receipt of the certificate
issued by the commissioner in terms of section 135 (5). 8 Confidentiality (1) Employers
and employees must ensure that grievances about sexual harassment are
investigated and handled in a manner that ensures that the identities of
the persons involved are kept confidential. (2) In cases of sexual harassment, management, employees and the parties
concerned must endeavour to ensure confidentiality at the disciplinary
inquiry. Only appropriate
members of management, and the aggrieved person, his or her
representative, the alleged perpetrator, witnesses and an interpreter, if
required, should be present at the disciplinary inquiry. (3) Employers
are required to disclose to either party or to their representatives such
information as may reasonably be necessary to enable the parties to
prepare for any proceedings in terms of this code. (4) The relevant provisions of section 16 of the Act will apply to the
disclosure of information in terms of this code. 9 Additional sick leave Where an
employee’s existing sick leave entitlement has been exhausted, the
employer should give due consideration to the granting of additional sick
leave in cases of serious sexual harassment where the employee, on medical
advice, required trauma counselling. 10 Information and education (1) The Department of Labour should ensure that copies of this code are
accessible and available. (2) Employers
and employer organisations should include the issue of sexual harassment
in their orientation, education and training programmes for employees. (3) Trade unions should include the issue of sexual harassment in their
education and training programmes for shop stewards and employees. (4) CCMA commissioners should receive specialised training to deal with
sexual harassment cases. |
