The World Bank data shows that out of the total labour force, 45.7% of women are employed in South Africa.[1] Employee safety in South Africa is protected by common law as well as a number of regulations. According to common law, employers have a responsibility to make sure that employees are safe at work, including from sexual harassment and its psychological impacts.
The term "sexual harassment" is not defined in the Constitution. However, it counsels the courts to uphold freedom, equality, and human dignity. The Constitution of South Africa does not explicitly guarantee the right to a safe workplace, but under Section 24 everyone has the right to a harmless environment. Further, Section 9 of the Constitution gives the right to equality and condemns any form of unfair discrimination. The Constitution also guarantees every employee the right to fair labour practices. The judiciary has also ruled that sexual harassment is an unfair form of discrimination and a violation of a person's dignity.
The Employment Equity Act, 1998
The Employment Equity Act (EEA) under Section 6 forbids and discourages all forms of harassment. Under sub-section 3, harassing an employee constitutes unfair discrimination and such unfair discrimination is unlawful and prohibited.
Furthermore, Section 51(1), protects employees from discrimination by anyone, including the employer. Section 51 was incorporated with the anticipation of the possibility that some employers retaliate against an employee for reporting harassment at a workplace. In Christian v. Colliers Properties (2005), the employer had an employee, and the court held that the employer's disciplinary measures were retaliatory since they were taken to punish an employee for not returning sexual advances.[2] The Act also commits under Section 60, to penalise employers who retaliate against registered complaints or choose to do nothing.
The act further mandates that the employer should consult all relevant parties and must take the necessary steps to eliminate any alleged conduct and comply with the provisions of this Act. If the employer fails to take the necessary steps and it is proved that the employee has contravened the relevant provision, the employer is deemed to have contravened that provision.
The Code of Good Practice on the Handling of Sexual Harassment Cases, 1998
The Code was enacted in 1998. Sexual harassment has not been defined under the EEA 1998, however, under the Code a detailed definition has been provided that states that any unwanted conduct of a sexual nature would amount to sexual harassment. Under Item 3(2), sexual attention becomes sexual harassment if-
(a) the behaviour is persistent; though a single act of harassment is also punishable;
(b) the victim has made it obvious that the behaviour is objectionable;
(c) the perpetrator should have known that the behaviour is improper.
The Code further states that sexual harassment includes unwanted physical, verbal, or non-verbal behavior. It also discusses sexual favouritism, which occurs when someone is in a position of authority and rewards only those who consent to their sexual advances, with promotions, merit ratings, or pay raises or quid pro quo harassment in other words.
The Code encourages firms to create anti-sexual harassment policies and make them known to their employees. Further, employers that do nothing about sexual harassment claims will also be held vicariously accountable.
In 2005, a test for sexual harassment was introduced under the Code. According to the test, the behavior will qualify as sexual harassment if it is unwanted sexual behavior that infringes on an employee's rights and creates a barrier to workplace equity. It considers the following elements:
a) whether the harassment is on the prohibited grounds of sex, gender, or sexual orientation;
b) whether the sexual conduct was unwelcome;
c) the nature and extent of the sexual conduct; and
d) the impact of sexual conduct on the employee.
Sexual Harassment covered under Labour Laws in South Africa
a. The Occupational Health and Safety Act, 1993
Section 8 of the Act stipulates that the employer must provide and maintain a working environment that is safe and free from risk to employees' health, and this also includes protection against sexual harassment.
b. The Labour Relations Act, 1995
Under Section 187, the Labour Relations Act talks about automatic dismissal being unfair if the ground for dismissal is that the employee filed a sexual harassment claim using the rights conferred under the Act. Additionally, it stipulates that if the employer does nothing about a reported sexual harassment case, employees may leave and assert constructive dismissal under Section 186(1)(e).
Conclusion
South Africa has established a network of legal measures to address sexual harassment in the workplace. Legislation and Codes have been enacted to incorporate good conduct at workplaces and to eliminate sexual harassment from the workplace. It has established easily accessible procedures (both formal and informal) and advice desks with confidentiality assurances for complainants, protection from retaliation, and other guarantees. This shows that the existing laws are adequate to deal with cases of sexual harassment, however, there still exists a lack of implementation of these laws. One issue identified for the non-effectiveness of these laws is the highly subjective approach taken by the courts.
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