Sexual Harassment Laws in South Africa
Sexual harassment is any unwanted attention of a sexual nature that takes place in the workplace.
This is any kind of sexual behaviour that makes you feel uncomfortable, including:
- Unwelcome sexual jokes
- Unwanted questions about your sex life
- Rude gestures
- Requests for sex
- Staring at your body in an offensive way.
The Labour Relations Act is the main act that deals with sexual harassment in the workplace. It has a Code of Good Practice on Sexual Harassment that sets out the best ways to deal with complaints about sexual harassment.
Sexual harassment is an unfair labour practice and if it happens to you, you can ask your employer to deal with it.
You have the right to:
- A workplace that is free from sexual harassment.
- Be treated with dignity and respect at work.
- Be treated equally, and not to be discriminated against because of race, gender and your HIV status.
- To report sexual harassment without fear of victimisation (ill-treatment).
- Have your complaint treated seriously and confidentially.
What to do if you are Sexually Harrassed?
You can deal with sexual harassment in an informal or formal way.
This is when you try to sort out the problem without taking up a grievance (formal workplace complaint) against the abuser.
Ways of taking informal action:
- Talk to the abuser and ask him to stop the behaviour that makes you feel uncomfortable.
- If you feel uncomfortable about being alone with the abuser, you can ask someone that you trust to come with you when you talk to the abuser.
- Write to the abuser and tell him that his behaviour makes you uncomfortable and ask him to stop. In your letter, write down the things that the abuser does that make you feel uncomfortable.
- Keep a copy of the letter.
- Send the letter by registered mail so that you can prove that you sent it.
- Ask someone else to speak to the abuser. You can ask your shop steward or a work colleague to do this for you.
- Where a formal procedure has been chosen by the aggrieved, a formal procedure for resolving the grievance should be available and should:
- Specify to whom the employee should lodge the grievance.
- Make reference to timeframes which allow the grievance to be dealt with expeditiously.
- 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.
Investigation and disciplinary action
- 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.
- 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.
- 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.
- 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.
- 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.
- 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).
Find out how the CCMA can help you.