According to the Employment Equity Act, no 55 of 1998, employees have the right to a safe working environment that does not facilitate harassment or allow harassment to take place. Read about how South African legislation protects you.
What behaviour constitutes harassment?
The Protection from Harassment Act, no 17 of 2011, describes harassment as direct or indirect behaviour that the harasser knows or ought to know will cause psychological, mental, physical or economic harm, or will lead someone to believe that they may be harmed. This includes sexual harassment.
Harassment could include:
- Unreasonably following or watching someone, or accosting them
- Unreasonably communicating with or attempting to communicate with someone, whether or not a conversation ensues
- Unreasonably sending, delivering or leaving communication or packages in places where they will be found by someone. This includes digital channels of communication
Sexual harassment includes:
- Unwelcome sexual attention that the harasser knows or ought to know is unwelcome
- Sexual suggestions or behaviour intended to offend, embarrass or humiliate a person
- The implied or expressed promise of a reward for complying with a sexual request
- The implied or expressed promise of reprisal for not complying with a sexual request
According to The South African Labour Guide website, examples of both forms of harassment include but are not limited to:
- Spreading malicious rumours or insulting someone, particularly on gender, race or disability grounds
- Ridiculing or degrading someone, picking on them or setting them up to fail
- Exclusion or victimisation
- Unfair treatment based on, for example, race, gender, sexual orientation, pregnancy, age, disability, religion, HIV status, etc.
- Overbearing supervision or other misuses of power or position
- Unwelcome sexual advances
- Making threats/comments about job security without foundation
- Deliberately undermining a competent worker by overloading them with work and constant criticism
- Preventing individuals progressing by intentionally blocking promotion or training opportunities
What can I do if someone is harassing me?
When it comes to sexual harassment in particular, an employee can choose to resolve the issue in one of 2 ways: informally or by means of a formal complaint. There should be no pressure to accept either option as a resolution.
It may be possible to take an informal approach as a first step and confront the harasser. Do this to explain that their behaviour is unwelcome, makes you feel uncomfortable and interferes with your work. After doing this, if the harassment continues, you should embark on a formal procedure.
The procedure for lodging a formal grievance differs from company to company, so it is important to familiarise yourself with your company’s policies. Note that as per legislation, employers and employees are required to make sure that all grievances investigated are conducted in a way that ensures the confidentiality of the persons involved. If evidence of misconduct is apparent, the employer will be required to take disciplinary steps against the accused, which may result in his or her dismissal.
Under the Protection From Harassment Act, it is also possible for victims to apply to a magistrate’s court for a protection order to be issued against the employer or colleague harassing them. The court will investigate the allegations and if it is satisfied that there is evidence of harassment, an interim protection order will be issued. Further investigation will then take place.
What if you didn’t know you were harassing someone?
In a 2018 sexual harassment case, the court explicitly stated that nowhere in the Code of Good Practice on Sexual Harassment does it require the accused employee to have been aware that their conduct was unwanted and offensive to the victim in order for the behaviour to be classified as sexual harassment. This means that the courts will no longer accept the claim that an alleged perpetrator ‘did not know’ they were harassing victims in question.
The information is shared on condition that readers will make their own determination, including seeking advice from a legal professional. E&OE.
- Employment Equity Act, no 55 of 1998. [PDF] Available at: http://www.labour.gov.za/DOL/downloads/legislation/acts/how-tos/Employment%20Equity/Act%20-%20Employment%20Equity.pdf [Accessed 6 June 2019]
- Protection from Harassment Act, no 17 of 2011. [PDF] Available at: http://www.justice.gov.za/legislation/acts/2011-017.pdf [Accessed 6 June 2019]
- Du Toit, J. (n.d.) Protection from Harassment Act. [online] The South African Labour Guide. Available at: https://www.labourguide.co.za/50-new/most-recent-publications/1648-protection-from-harassment-act [Accessed 6 June 2019]
- The Department of Justice and Constitutional Development. (n.d.) Protection from Harassment Act, 2011 (Act 17 of 2011). [online] Available at: http://www.justice.gov.za/forms/form_pha.html [Accessed 6 June 2019]
- CCMA (n.d.) Code of Good Practice on Sexual Harassment: Provided by the Commission for Conciliation Mediation and Arbitration (CCMA). [online] Available at: https://www.labourguide.co.za/general/600-code-of-good-practice-on-sexual-harassment113 [Accessed 6 June 2019]
- LegalWise. (2015) QuickLaw Guides: Harassment. [online] Available at: https://www.legalwise.co.za/help-yourself/quicklaw-guides/harassment [Accessed 6 June 2019]
- BusinessTech (2018). “I Didn’t Know I Was Harassing You” Won’t Fly as a Defence in Workplace Sexual Harassment Cases in SA. [online] Available at: https://businesstech.co.za/news/business/253095/i-didnt-know-i-was-harassing-you-wont-fly-as-a-defence-in-workplace-sexual-harassment-cases-in-sa/ [Accessed 6 June 2019]
- The South African Labour Guide (n.d.) Available at: https://www.labourguide.co.za/general/374-harassment-in-the-workplace [Accessed 6 June 2019]
- Meyerowitz, M, Johnson, S, Dekker Hofmeyr, C. (n.d.) Harassment in the Workplace, Restraining Orders and the Protection from Harassment Act. [online] The South African Labour Guide. Available at: https://www.labourguide.co.za/50-new/most-recent-publications/1639-harassment-in-the-workplace-restraining-orders-and-the-protection-from-harassment-act [Accessed 6 June 2019]