Employers should develop clear procedures to deal with harassment in terms of the EEA. These procedures should enable the resolution of problems in a gender-sensitive, confidential, efficient and effective manner. When an employee has reported an alleged incident of harassment or laid a complaint, the employer is obliged to investigate the allegation of harassment which has been brought to its attention and advise the complainant of the informal or formal procedures available to deal with the harassment.
10.1 Reporting harassment
| 10.1.1 | Section 60(1) of the EEA provides that any allegation of conduct by an employee in contravention of the EEA must immediately be brought to the attention of the employer. |
| 10.1.2 | The Labour Appeal Court has held that the word "immediately" must be interpreted in light of the purpose of the provision, which is to ensure that instances of harassment are investigated in terms of the EEA, and not technically.11 Allegations of harassment which are made within an appropriate time, in the circumstances, must be investigated and appropriate steps must be taken to prevent a re-occurence. This may include the institution of disciplinary action against alleged perpetrators. |
| 10.1.3 | Employers must take into account that in many cases, particularly with regard to sexual harassment, an employee may not raise a harassment-related grievance immediately because of factors such as a fear of reprisals and the relative positions of the complainant and the alleged perpetrator in the workplace. |
| 10.1.4 | Sexual, or other, harassment may be brought to the attention of the employer by the complainant or any other person aware of the harassment, for example a trade union/employee representative, friend, colleague or human resources official acting on the request of the complainant. An employee may only confide in someone else about a sensitive issue of harassment sometime after the event has occurred. However, where the harassment is of a particularly serious nature, the complainant should be encouraged to inform the employer. |
| 10.2 | Obligations of the employer |
When an allegation of harassment of an employee has been brought to the attention of the employer, the employer must:
| 10.2.1 | consult all relevant parties; |
| 10.2.2 | take the necessary steps to address the complaint in accordance with this Code and the employer's policy, where applicable, the collective bargaining agreement; and |
| 10.2.3 | take the necessary steps to eliminate the sexual harassment. |
| 10.3 | Failure to take adequate steps to eliminate harassment once an allegation of harassment by an employee has been submitted within a reasonable time, will render the employer vicariously liable for the conduct of the employee in terms of section 60 of the EEA.12 This is the case even if the harassment consists of a single incident.13 |
| 10.4 | The steps to be taken by the employer on receipt of a complaint by a complainant, should include, but are not limited to, the following: |
| 10.4.1 | advising the complainant of the informal and formal procedures available to deal with the harassment, as set out in the Code; |
| 10.4.2 | where reasonably practicable, offering the complainant advice, assistance and counselling as set out in this Code, including during any disciplinary enquiry that may be instituted; and |
| 10.4.3 | following the procedures, as set out in this Code, in a manner that is procedurally and substantively fair. |
| 10.5 | Advice and assistance |
| 10.5.1 | A complainant, in particular in sexual harassment cases, may require advice and assistance, including counselling. |
| 10.5.2 | As far as is practicable, employers should designate a person outside of line management who complainants may approach for confidential advice and/or counselling. Such person: |
| 10.5.2.1 | could be a person employed by the employer to perform such a function, a trade union representative, a co-employee or a professional engaged to perform such activity; |
| 10.5.2.2 | should have the appropriate skills and experience, including counselling and labour relations skills; and |
| 10.5.2.3 | should be properly trained and given adequate resources. |
| 10.6 | Advising the complainant of workplace procedures to deal with harassment |
| 10.6.1 | When an incident of harassment is brought to the attention of an employer, the employer should: |
| 10.6.1.1 | advise the complainant that there are formal and informal procedures which could be followed to deal with the problem; |
| 10.6.1.2 | explain the formal and informal procedures to the complainant; |
| 10.6.1.3 | advise the complainant that they may choose which procedure should be followed by the employer, except that in certain limited circumstances, as set out in this Code, the employer may choose to follow a formal procedure even if the complainant does not wish to do so; |
| 10.6.1.4 | re-assure the complainant that an employee will not face job loss or any adverse consequences if an employee chooses to follow either the formal or informal procedure; |
| 10.6.1.5 | advise the complainant that the matter will be dealt with confidentially; and |
| 10.6.1.6 | advise the complainant whether it may be appropriate to lay a criminal charge or to obtain a protection order. |
10.7 Informal procedures
| 10.7.1 | A complainant in a harassment matter may choose to follow either of the following informal procedures: |
| 10.7.1.1 | the complainant or another appropriate person explains to the perpetrator that the conduct in question is not welcome, that it is related to a prohibited ground and its impact on the complainant, for example, that it makes the person feel uncomfortable and that it interferes with their work; or |
| 10.7.1.2 | an appropriate person approaches the perpetrator, without revealing the identity of the complainant, and explains to the perpetrator that certain forms of conduct constitute harassment on a prohibited ground, are offensive and unwelcome, make employees feel uncomfortable, and interfere with their work. |
| 10.7.2 | An employer should consider any further steps, which can be taken to assist in dealing with the complaint. |
| 10.8.1 | A complainant may choose to follow a formal procedure, either with or without first following an informal procedure. |
| 10.8.2 | In the event that a complainant chooses not to follow a formal procedure, the employer should still assess the risk to other persons in the workplace where formal steps have not been taken against the perpetrator. In assessing such risk the employer must take into account all relevant factors, including the severity of the sexual harassment and whether the perpetrator has a history of sexual harassment. If it appears to the employer after a proper investigation that there is a significant risk of harm to other persons in the workplace, the employer must follow a formal procedure, irrespective of the wishes of the complainant, and advise the complainant and/or their representative accordingly. |
| 10.8.3 | The employer's harassment policy and/or collective agreement should outline the following in respect of a formal procedure: |
| 10.8.3.1 | with whom a grievance should be lodged; |
| 10.8.3.2 | the internal grievance and disciplinary procedures to be followed, including provision for the complainant's desired outcome of the procedures; |
| 10.8.3.3 | time frames which will allow the grievance to be dealt with expeditiously; |
| 10.8.3.4 | that should the matter not be satisfactorily resolved by the internal procedures outlined above, a complainant of harassment may refer the dispute to the Commission for Conciliation Mediation and Arbitration (CCMA) or Bargaining Council14 with jurisdiction for conciliation, and if not resolved, to the CCMA, Bargaining Council with jurisdiction, or Labour Court for adjudication, as provided for in section 10 of the EEA. Claims of harassment under PEPUDA may be referred to the Equality Court. Similarly, an alleged perpetrator of harassment may refer a dispute arising from disciplinary action taken by the employer to the CCMA or, where appropriate, the Labour Court; and |
| 10.8.3.5 | that it will be a disciplinary offence to victimize or retaliate against a complainant who in good faith lodges a grievance of harassment. |
| 10.9 | Disciplinary sanctions |
The employer's harassment policy should specify the range of disciplinary sanctions that may be imposed on a perpetrator. The sanctions must be proportionate to the seriousness of the harassment in question, and should provide that:
| 10.9.1 | warnings may be issued for minor instances of harassment. A warning issued to a perpetrator must describe the essence of the discriminatory misconduct;15 |
| 10.9.2 | dismissal may ensue for continued minor instances of harassment after warnings, as well as for serious instances of harassment; |
| 10.9.3 | in appropriate circumstances upon being found guilty of harassment, a perpetrator may be transferred within the workplace or to another workplace within the company; and |
| 10.9.4 | a complainant about harassment has the right to lay a criminal charge or institute civil proceedings against the alleged perpetrator. |
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| 11 | Liberty Grout Ltd v M (2017) 38 ILJ 1318 (LAC) at paras 48-54. |
| 12 | Future of SA Workers Union on behalf of AB & others v Fedics (Pty) Ltd & another (2015) 36 ILJ 1078 (LC). |
| 13 | Moatshe v Legend Golf & Safari Resort Operations (Pty) Ltd (2015) 36 ILJ 1111 (LC) at para 44 |
| 14 | Certain bargaining councils have concluded collective agreements in terms of which dispute between parties under the EEA may be conciliated and arbitrated under the auspices of the bargaining council. |
| 15 | Future of SA Workers Union on behalf of AB & others v Fedics (Pty) Ltd & another (2015) 36 ILJ 1078 (LC) at para 166. |
