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Can an employer be held liable for damages if they do not address allegation of sexual harassment in the workplace?
26 April 2022  | Lesedi Moalosi
 
“I’m an employer and one of my employees has reported a sexual harassment case, which has been proven to be true. 

I have sexual harassment policies and procedures in place, which I have attempted to utilize in order to resolve the 
matter at hand, however, I have not taken all the necessary steps to ensure that the employee is properly protected from sexual harassment, nor have I taken steps to implement preventative and awareness progress to train and educate all my employees on what constitutes violence and harassment in the workplace, in the form of updated policies and procedures as well as regular training courses. 

I thought the mere fact that I have attempted to resolve the matter would absolve me from being vicariously liable as an employer, but now I am not certain whether this is still true. Can I still be liable for damages if I do not take all the necessary steps to address the allegations of sexual harassment in the workplace?” 
 
To answer the above question, we need to turn to the Employment Equity Act(hereafter the Act)  read with the Code of Good Practice. This act regulates sexual harassment cases and provides guidelines. The Act, the Labour Relations Act, read together with the Code states that any person applying or interpreting any employment law must take into account any code issued by the Act.  
 
1. Background 
 In accordance with the Employment Equity Act, the Minister of Employment and Labour has released an updated Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (the Code) (EEA). The new code took effect on the 18th of March 2022, and it replaced the 2005 Amended Code of Good 
Practice on the Handling of Sexual Harassment Cases  in the Workplace.   
 
South Africa ratified the International Labour Organization's Convention on the Elimination of Violence and Harassment in the Workplace in November 2021, and this necessitated the development and publication of the new Code.  
 
The Convention requires that ratifying countries have a gender-responsive integrated, and an inclusive response to harassment and violence within the workplace. As a result, the Code is directed by the Convention and aims to address the removal and prevention of all forms of harassment (which includes, but is not limited to sexual harassment cases only) that exist in the workplace.   
 
2. Purpose of the new Harassment Code  
Although the new code integrates the 2005 code, it contains considerable expansions with regards to various types of workplace harassments that an employee may encounter.  It further expatiates on the procedure that employers should follow when dealing with the various types of harassments.
It also places an additional obligation on the employers by not only requiring them to implement policies that demonstrates that violence and harassment may be deemed to amount to unfair discrimination or assault, but by also requiring the  employer to implement prevention and awareness programs which aim to educate and train employees about violence and harassment in the work place .In addition, the employer ought to also implement health and safety policies that explicitly define the interventions for each type of workplace violence and harassment.
Employers should further take into consideration support programs to help those who are impacted by the violence and harassment.  
 
In summary, it can be said that the, the Harassment Code offers "guidelines to employers and employees on the prevention and elimination of all forms of harassment as a form of unfair discrimination in the working environment and on the advancements of procedures, human resources policies, and practices which relate to harassment, as well as applicable procedures to deal with harassment and prevent it from re-occurring."  
 
3. Application of the new Harassment Code 
 All employers and workers, as well as 'applicants for employment' are covered by the Harassment Code. The code acknowledges that the victims and perpetrators can also be people other than employees, employers, job seekers, owners, clients, suppliers, contractors, volunteers, people in training such as interns, trainees, those on learnerships, and individuals who have dealings with the employer's business. The new Code's protection of employees extends to every situation in which the employee is working or that is relevant to their work. Meaning, harassment occurs not only while employees are on-duty at a physical workplace, but also during work-related trips, training, social activities, work-related communications, when an employer provides accommodation, when employees travel to and from work in transportation that is supplied by the employer, and so forth.  
 
The Harassment Code governs both 'substantive' and 'procedural' elements of harassment. The code provides clarity on the definition of 'harassment' which is  "commonly understood to be an undesired conduct, which affects dignity, which creates a hostile or intimidating working atmosphere for one or more employees or is calculated to, or has the overall impact of, inducing submission by actual or threatened adverse consequences, and is associated to one or more grounds in respect of which discrimination is prohibited in terms of section 6(1) of the Employment Equity Act 55 of 1998." (EEA). 
 
 
The new Code deals with harassment as a concept broadly by stating that the different types of harassment includes sexual harassment, racial, ethical and social origin. It also specifies the types of conduct that constitute harassment, such as physical, psychological, or verbal harassment. Intimidation and workplace bullying are examples of such behavior, as is the use of physical force or authority, irrespective of whether it is threatened or actual, against another person or a group of people.  
 
Employers are obligated to "take proactive and remedial actions to prevent all types of harassment in the workplace" under the EEA, as per the procedure. The concern is that, under section 60 of the EEA, employers will be held vicariously liable for any harassment that occurs as a result of their failure to do so. 
 
The procedural steps that an employer must establish includes the establishment of harassment policies, which must be communicated to employees, and the adoption of well-defined procedures that address all forms of harassment in the workplace.  
 
Such procedures include how harassment should be reported, what the employer's obligations are when they learn of allegations of harassment, what guidance and assistance should be provided to complainants, and the 'formal' and 'informal' processes in place to deal with the harassment. 
 
 
4. Effect of the new Harassment Code 
 The Harassment Code introduces new requirements which employers must follow, for failure to do so may result in vicarious liability on the part of the employer under section 60 of the EEA. The effect of this is that, employers must review their current policies and procedures for dealing with workplace harassment (if any) and ensure that they comply with the guidelines provided in the new Harassment Code.  
 
A case in point which illustrates the liability of an employer for failure to take sufficient precautions to ensure that the employee was adequately protected from sexual harassment by her superior is the Eastern Cape High court case of PE v Dr Beyers Naude Local Municipality and Another (2021) 2 ALL SA ECG,  in which a former employee of the Dr Beyers Naudé Municipality was awarded damages of R4m after being sexually harassed by her direct report. 
 
In conclusion employers must not only treat a sexual harassment complaint with transparency, vigour and the urgency that it deserves, but to also consider taking all the necessary measures to ensure that all employees know what constitutes sexual harassment through updated policies, procedures and regular training courses.12 Should employers fail to adhere to the new Code read with the Employment Equity Act and the Labour Relations Act, the employers will be vicariously liable.  
 
 
 
 
Bibliography  
 
Literature 
 
Kubjana L Understanding The Law on Sexual Harassment In the Workplace (Through A Case Law Lens) : A Classic Fool’s Errand ( LLM-dissertation university of South Africa 2020) 
 
Mather N “ South Africa:Harassment in the workplace -Employers to take note of their obligations under the new code of good practice”  Bowmans (24 March 2022) 
 
Reed J” Protect employees against sexual harassment or face the consequences”  Business Day ( 01 September 2021) 4 
 
Update: Code of Good Practice on Prevention & Elimination Of Harassment In The Workplace (2022) available at  https://www.skillsportal.co.za/content/update-codegood-practice-prevention-elimination-harassment-workplace pdf accessed 11 April 2022 
 
Van Wyk J, Van Heerden A and Plaatjies D “ Update: Prevention and elimination of harassment in the workplace”  Werkmans attorneys (23 March 2022)  
 
 
 


    
 
 
 
 
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