The Minister of Employment and Labour has published the new Code of Good Practice on the prevention and elimination of harassment in the workplace (the Code) in terms of the Employment Equity Act (EEA). The Code became effective on 18 March 2022
The Code defines an act of Harassment’ as “generally understood to be [a] unwanted conduct, which impairs dignity, [b] which creates a hostile or intimating work environment for one or more employees or is calculated to, or has the effect of, inducing submission by actual or threatened adverse consequences and [c] is related to one or more grounds in respect of which discrimination is prohibited in terms of section 6(1) of the” Employment Equity Act 55 of 1998 (“EEA“).
“In SA Metal Group (Pty) Ltd v COMA, the (male) alleged perpetrator had asked the complainant, a female colleague, whether she was “offering to play with me (him)” and had further mentioned that he “can’t wait for summer to see you (her) strut your stuff”.
The complainant, for her part, had on one occasion sent a “little love” card to the alleged perpetrator as a birthday wish. The commissioner did not find the alleged perpetrator’s statements to be sexually harassing but instead regarded the claim of sexual harassment to be nothing other than a fabrication. The commissioner found that the comments did not contain any explicit sexual connotations and that the complainant did not make the proposer aware that the verbal banter was “unwelcome”. This decision did not survive the review by the labour court, which found sexual harassment to have happened and ordered the dismissal.”
The Equity Employment Act defines sexual harassment as the unwanted conduct of a sexual nature which makes a person feel offended, humiliated, or intimidated. This is not limited to sexual harassment of the opposite gender and includes homosexual and bisexual harassment.
The Code of Good Practice expects that employees will be warned of the undesirability of harassment and the procedures to be followed by victims in the event of such conduct. This implies that all employees including employers should be educated in this regard. Section 60 of the EEA provides that an employer will be held liable where they had been informed of the occurrence of sexual harassment and failed to take the appropriate corrective methods and as such in cases where an employee is subject to sexual harassment at the workplace, such conduct must be brought to the attention of the employer. Failure to do so will result in the contravention of the provisions of the Act.