South Africa faces more than one pandemic. Gender-based violence has plagued the nation for years. GBV, as it is more commonly known, is violence directed at an individual on the basis of his or her biological sex or gender. It includes physical, sexual, verbal, emotional and psychological abuse, threats, coercion and economic or educational deprivation, whether in public or private life. This article will consider one kind of gender-based violence: sexual harassment in the workplace.
The recent judgment in the case of Motor Transport Workers Union obo Zikhali v Izinkobe Construction (Pty) Ltd (2020) 7 BALR 715 (BCCEI) provides an in-depth discussion of sexual harassment in the workplace. The case was referred to the Bargaining Council in terms of section 191(5)(a)(i) of the Labour Relations Act. The applicant, who was employed as a supervisor by the respondent, was dismissed for conduct of a sexual nature which amounted to inappropriately touching a subordinate female employee and impairing the dignity of a woman in the workplace.
It was submitted to the council that the applicant fondled the victim every time he spoke with her. He would repeatedly ask her on dates and inappropriately refer to her as “my love”. When confronted by another supervisor, the applicant contended that it was not an offence to touch the breast of a Zulu woman at his previous workplace and it was only an offence once the woman disapproved.
The 2005 Commission for Conciliation, Mediation and Arbitration’s Code of Good Practice on Sexual Harassment (“CCMA Code of Good Practice”) defines sexual harassment as unwanted conduct of a sexual nature. According to the Code, sexual attention becomes sexual harassment when the behaviour is persistent and not mutual. However, a once-off incident still amounts to sexual harassment. Furthermore, sexual attention becomes sexual harassment when the recipient has made it clear that the behaviour is unwelcome and offensive. Sexual harassment violates the rights of an employee and constitutes a barrier to equity in the workplace, taking into account the following factors:
- whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation;
- whether the sexual conduct was unwelcome;
- the nature and extent of the sexual conduct;
- and the impact of the sexual conduct of the employee.
In Rustenburg Platinum Mines Limited v UASA obo Pietersen and others, the court noted that sexual harassment is such that any direct evidence will be hard to come by where the allegations are not admitted to. Item 220.127.116.11 of the CCMA Code of Good Practice makes it clear that verbal conduct includes unwelcome innuendos, suggestions, hints, sexual advances or comments with sexual overtones. An objective assessment of the conduct complained of would therefore be required where an allegation is made.
The court went on to state that a workplace should not be confused with a “find-me-love sanctuary” or “lonely hearts club” for employees. It should be free from “amorous” employees looking for love and gratification at every opportunity. In any event, employees should not readily express their affection in the workplace to each other to the point where the conduct in question is frowned upon and crosses the line between innocent attraction and sexual harassment. Where affection is shown by employees it must always be consented to. Where the conduct creates a sexually hostile and intimidating work environment that undermines the dignity, privacy and integrity of the harassed, it amounts to sexual harassment as stipulated in item 4.4 of the 2005 Code. In the matter in question, the unwelcome affectionate advances were repeatedly rebuffed to the point where the complainant felt helpless and burdened.
Turning to whether the complainant indicated that the conduct was unwelcome, the Bargaining Council remarked that cognisance must be given to silence in the face of harassment, which should never be interpreted as acquiescence. It is important to consider how the complainant’s dignity was impaired, especially considering her junior position in relation to the transgressor, and that in the absence of reciprocation, there was no requirement for the complainant to say no in unambiguous terms. Silence does not amount to consent.
Section 10 of South Africa’s Constitution affords everyone the right to dignity and the right to have that dignity protected and respected. Furthermore, Section 23(1) affords everyone the right to fair labour practices. It is important that employees respect each other’s right to privacy, dignity and integrity. The Employment Equity Act prohibits sexual harassment of employees by other employees and holds the employer liable in such cases, even if the employer is not aware of the sexual harassment. Section 60 of the Act provides that, if the employer fails to take the steps necessary to deal with unfair discrimination or sexual harassment and it is proven that an employee contravened the relevant provisions, the employer must be deemed also to have contravened that provision. Therefore, it is equally important for an employer to be aware of the actions of their employees and take effective measures to curtail unfair discrimination and sexual harassment.
Sexual harrasment in the workplace is a silent plague experienced by more people than one would imagine. It is however not only the responsibility of the employer to create a safe working environment but also the duty of each employee to not take advantage of subordinates or those that are vulnerable. The cornerstone of all workplace interactions should be consent.