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CODE OF GOOD PRACTICE - SEXUAL
HARASSMENT
1.Introduction
(1) The objective of this
code is to eliminate sexual harassment in the workplace.
(2) This code provides
appropriate procedures to deal with the problem and prevent its
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 employees respect one another’s
integrity and dignity, their privacy, and their right to equity in the
workplace.
2. Application of the code
(1) Although this code is
intended to guide employers and 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 a business.
(2) Nothing in 2 (1)
above confers the authority on employers 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 examples listed as follows:
(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 directed toward them, unwelcome and inappropriate
enquiries about a person’s sex life, and unwelcome whistling directed 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 the
process of employment, promotion, training, discipline, dismissal,
salary increment or other benefit 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/her sexual advances, whilst other deserving
employees who do not submit themselves to any 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 contributing
towards creating and maintaining a working environment in which sexual
harassment is unacceptable. They should ensure that their standards of
conduct do 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 is not intended as a substitute for disciplinary
codes and procedures containing such measures, where these are the
subject 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 and commitment to dealing with the problem of sexual
harassment, employers should issue a policy statement which should
provide that:
(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
subjected to sexual harassment in the workplace have a right to raise a
grievance about it should it occur and appropriate action will be taken
by the employer.
(2) Management should be
placed under a 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 that:
(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 whom victims may approach for confidential advice. Such
a person:
(a) Could include
persons employed by the company to perform inter alia such a function, a
trade union representative or co-employee, or outside professionals.
(b) Should have the
appropriate skills and experience or be properly trained and given
adequate resources.
(c) Could be required to
have counseling and relevant labour relations skills and be able to
provide support and advice on a confidential basis.
(2) Options to resolve a problem
(a) Employees should be
advised that there are two options to resolve 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 where she/he can
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 has not provided a satisfactory outcome, 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, a formal procedure for resolving the
grievance should be available and should:
(a) Specify to whom the
employee should lodge the grievance.
(b) Make reference to
timeframes which allow the grievance to be dealt with expeditiously.
(c) Provide that if the
case is not resolved satisfactorily, the issue 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 grievance of sexual harassment that the
aggrieved person is not disadvantaged, and that the position of other
parties is not prejudiced if the grievance is found to be unwarranted.
(b) The Code of Good
Practice regulating dismissal contained in Schedule 8 of this Act,
reinforces the provisions of Chapter VIII of this 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 Practice
contained in Schedule 8 of this 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 this 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 in the disciplinary enquiry. Only
appropriate members of management as well as the aggrieved person,
representative, alleged perpetrator, witnesses and interpreter if
required, must be present in the disciplinary enquiry.
(3) Employers are
required to disclose to either party or to their representatives, such
information as may be reasonably necessary to enable the parties to
prepare for any proceedings in terms of this code.
(4) The relevant
provisions of section 16 of this 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
requires trauma counseling.
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 of employees.
(3) Trade unions should include the issue
of sexual harassment in their education and training programmes of shop
stewards and employees.
(4) CCMA commissioners should receive
specialised training to deal with sexual harassment
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