Prevention is better than cure

Damage control is against what the Employee Equity Act (EEA) stands for and stipulates. 

 

Prevention is better than cure, especially when the cure is costly, time consuming and damaging to your reputation.

 

In a presentation by leading law firm Fasken in 2020, they have noted that the South African judiciary has become particularly heavy handed on sexual harassment perpetrators. Sexual harassement is prohibited as an unfair form of discrimination by several legislative provisions, including the highest courts internationally and in South Africa.

 

The South African law conveys zero tolerance towards sexual harassment. The Labour Appeal Court states that sexual harassement is “The most heinous misconduct that plagues a workplace

 

Fasken notes that the judiciary has recently awarded a victim of sexual harassment R4 million in damages after being sexually harassed, payable by the perpetrator and the company. Even in conservative rulings, some employers have been ruled to pay amounts up to a quarter of a million in damages to the employee, for failure of taking reasonable steps to address the sexual harassment incident in the workplace. 

 

Sexual harassment is defined in the code as unwelcome conduct of a sexual nature that violates thar rights of an employee and constitutes a barier to equity in the workplace. The behaviour must be unwelcome, must be of a sexual nature, must have the ability to impair a person’s dignity. 

 

In certain instances, the employer may be held vicariously liable for acts of sexual harassment perpetrated by their employees or, in certain instances, sexual harassement perpetrated by third parties against employees – especially where an employer fails to intervene. In the South African law system, employees have successfully claimed compensation for sexual harassement agains the employer, based on constructive dismissal, unfair discrimination and the failure of the employer to provide a safe and resprectful working environment for their employees. 

 

Section 6 (3) of the EEA stipulates: “Harassment of an employee is a form of unfair discrimination and is prohibited”

 

After being sexually harassed by her manager, and her working environment becoming intolelrable, a victim stated: 

 

…I reported the harassment to management and [The Employer] failed to react thereon. However, I later discovered that [The Perpetrator] was contacted and informed of the matter in my absence, but nobody came back to me to help me deal with the situation, or to resolve this issue.” 

 

Because the employer failed to collaborate with the employee, they were ordered to pay compensation. They did too little, too late. The employer was held liable to compensate the employee, because:

 

  • The employer failed to take positive steps to protect the employee in the manner contemplated by the employment equity act; 
  • The employer failed to adhere to its own policy and regard the purpose and objects; 
  • The absence of any investigation until after the respondent resigned; and
  • The lack of interest to resolve the issue, consult and take the necessary steps.

 

The employer is at risk of an unfair discrimination claim should steps not be take to eliminate this form of conduct. Section 60 of the EEA states that:

 

  • The employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct and comply with the provisions of this Act. 
  • An employer is not liable for the conduct of an employee if that employer is able to prove that it did all that was reasonably practicable to ensure that the employee would not act in contravention of this Act

 

Employers are expected to immediately investigate the matter to identify the nature and extent thereof, provide the victim with counseling and support, give the matter the confidentiality and sensitivity that it deserves and obtain relevant feedback from the employee or victim as to what relief they would seek. Based on the outcome of the investigation, immediate disciplinary action should be taken, or any other recourse that should be necessary. The employer should ensure that such conduct is not repeated. 

 

What steps can an employer take?

 

  • Ensure a working environment that is harmonious and safe;
  • Promote equity and equality in the workplace;
  • Value the respect and dignity of all employees;
  • Create platforms that bring attention and awareness to this kind of conduct;
  • Instill a culture that does not condone such conduct;
  • Train employees to raise the understanding, empathy and vigilance of those in the workplace;
  • Create a climate in which employees or victims do not feel that their claims or worries will be trivialised or ignored, but handled in a confidential and suitable manner; and
  • Have policies, procedures and systems in place that include grounds against and give attention to sexual harassment.

 

The ulitmate solution to sexual harassent lies predominantly in the education of those in the workplace to change their attitudes and perceptions and increase the value placed on human dignity. Easy Training offers affordable, on-demand, online training that is focussed on cultivating healthy working cultures. Our first course on sexual harassment can be completed on any device, at any time and is easy to understand, engaging and designed to save you time and money.

 

It has become exponentially more expensive to look away from sexual harassment in the workplace. Choose the easiest way to prove your compliance – take active steps in instilling knowledge in your employees.

Prevention is, in a judicial system that does not favour the apathetic, better than cure. 

 

Visit Easy Training here.

 

Coda:

 

The legislative framework is to be found:

 

  • Employee Equity Act (https://www.labour.gov.za/DocumentCenter/Acts/Employment%20Equity/Act%20-%20Employment%20Equity%201998.pdf)
  • Code of Good Practice on the Hanling of Sexual Harassement Cases – 1998 and 2005 Codes (https://www.gov.za/sites/default/files/gcis_document/201409/278650.pdf):
    • 2005 Code amends the 1998 Code – not repealed or replaced – never withdrawn;
    • Both Codes are relevant in terms of section 203(3) of the LRA.

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