The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (“the Code”) that was gazetted on 18 March 2022 has repealed the 2005 Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace. Although the Code covers harassment generally as a form of discrimination, it has a section specifically focusing on sexual harassment.
In terms of the Code, sexual harassment is a form of unfair discrimination based on sex, gender, or sexual orientation.
Much of the text of the 2005 Code has been incorporated into the Code. However, there are some crucial distinctions.
What is the test for sexual harassment?
The new test for sexual harassment provided for in clause 5.3.1 of the Code is wordy and inclusive of both essential and non-essential elements of what constitutes sexual harassment:
“Sexual harassment is unwelcome conduct of a sexual nature, whether direct or indirect, that the perpetrator knows or ought to know is not welcome. Sexual harassment may be offensive to the complainant, make the complainant feel uncomfortable or cause harm or inspire the reasonable belief that the complainant may be harmed. Sexual harassment may interfere with the work of the complainant although it need not necessarily do so. Sexual harassment violates the rights of an employee and constitutes a barrier to equality in the workplace.”
To assist in breaking this down, the test in the Code can be summarised as:
- unwelcome conduct;
- of a sexual nature;
- where the perpetrator knows or ought to know such conduct is unwelcome; and
- violates the rights of an employee and constitutes a barrier to equality in the workplace.
The primary change from the 2005 Code is the introduction of the required element that the perpetrator knows or ought to know that the conduct is unwelcome.
The Code provides the following factors are to be considered in establishing sexual harassment:
- Unwanted conduct: The Code states in relation to unwanted conduct:
(a) that there are different ways to indicate the conduct is unwanted
(b) that previous consensual sexual conduct does not necessarily make the conduct wanted;
(c) the complainant may seek assistance to communicate it; and
(d) where a complainant does not indicate that the conduct is unwanted does not entail that there has not been sexual harassment.
The new Code uses the terms ‘unwanted conduct’, ‘unwelcome conduct’, and ‘unacceptable conduct’ in different places in the Code. These are probably interchangeably used and not intended to mean different things.
2. The nature and extent of the conduct: The broad definition of behaviour that constitutes sexual harassment includes physical, non-verbal, and verbal conduct of a sexual nature. The description of the nature and extent of the conduct constituting sexual harassment has been extended. A single incident may constitute sexual harassment
3. Impact of the conduct: the conduct constitutes an impairment of the employee’s dignity, considering:
(a)circumstances of the employee; and
(b)the respective positions of the employee and the perpetrator in the workplace.
In other words, the perpetrator of sexual harassment is most commonly in a position of power over the victim. This power could stem from their position, age, authority, status, or another relevant circumstance.
Who is included in the workplace?
Perpetrators and victims of harassment may include owners, employers, managers, supervisors, employees, job seekers and job applicants, persons in training including interns, apprentices and persons on learnerships, volunteers, clients and customers, suppliers, contractors, and others having dealings with the business.
What is important, of course, is that only the employer of an alleged perpetrator can take disciplinary action against that person.
When it comes to other non-employees, employers may need to act to ensure that a safe environment is created for all those that engage in that workplace. Therefore, for example, if a customer sexually harasses an employee in that workplace, the employer cannot discipline the customer but could refuse to provide products or services to that customer in the future, thereby prohibiting that customer from engaging with that workplace, and eliminating any future harassment.
However, employers cannot be held liable for the actions of non-employees in terms of section 60 of the Employer Equity Act 55 of 1998 (“EEA”). In Samka v Shoprite Checkers (Pty) Ltd and Others [2020] 9 BLLR 916 (LAC) the court found that section 60 does not extend to the conduct of a third party towards an employee on a plain reading of the section, and therefore the employer did not commit unfair discrimination because of the third party’s action towards its employee.
Where can sexual harassment take place?
Protection extends to any situation in which the employee is working, or which is related to their work. Importantly, it includes work-related communication such as internet-based platforms and virtual work.
The procedural options
The Code requires employers to adopt a zero-tolerance approach to harassment. This includes ensuring that complaints of harassment are not ignored or trivialised and there is no fear of reprisals.
The employer must adopt a harassment policy, which must cover sexual harassment.
The Code correctly places emphasis on the employer’s obligation to provide advice and assistance to a complainant. However, there is an odd addition in the Code which states that the employer should also “advise the complainant whether it may be appropriate to lay a criminal charge or to obtain a protection order.” In my view, this should be done with caution.
Informal vs formal procedure
The Code provides formal and informal procedural options:
- The informal procedure enables the complainant, or an appropriate person, to explain to the perpetrator that the conduct is unwelcome, based on prohibited ground and impact; or a person can give a general explanation to the perpetrator without identifying the complainant.
- Formal procedure provides that internal grievance procedures be followed including to whom the grievance must go, and options the complainant has should the matter not be resolved to their satisfaction. Confidentiality must be maintained where possible.
These options should be explained to the complainant who then may choose which procedure they wish to follow, subject to the employer being allowed to elect to go the formal route in certain circumstances.
What parties can do to prevent sexual harassment?
There are several initiatives employees, unions, and employees can take, including:
- Update your sexual harassment policy. This could be included in a general harassment policy.
- In your policy, be clear on the grievance process. In our view, in most cases the appropriate route in harassment cases is an investigation, not a hearing.
- Ensure the values and culture of your organisation are such that it eliminates sexual harassment.
- Consider a ‘champion’ for harassment, which is a trusted person who may or may not be a shopsteward or HR person.
- Hold short workshops on what constitutes sexual harassment and link the intolerance thereof to your culture and values.
- Act immediately on any rumours or complaints of sexual harassment.
Tanya Venter 25 April 2022
Tanya is an Advocate of the High Court and specialises in dispute resolution and dispute system design. She has extensive experience as a mediator, arbitrator, and employment matters.
Tokisos’ webinar on the new code’s impact on the combat of sexual harassment, held on 13 April 2022: