In the same period in which South Africa was dealing with the Covid-19 pandemic, the South African judiciary handed down a series of judgments in which several shortcomings in the current regulation of sexual harassment in the workplace were considered.

Indeed, as the Constitutional Court pointed out in 2021, sexual harassment is the most egregious misconduct that plagues the workplace. Insightfully, the court also commented that the legislative regime adopted to deal with this plague has been largely ineffective.

Primarily, sexual harassment has been regulated as a form of unfair discrimination, which is prohibited on the grounds of sex, gender and sexual orientation. Sexual harassment is unwelcome conduct of a sexual nature, which impairs human dignity and creates a hostile working environment. It is an abuse of power, and it includes physical, verbal or psychological conduct and it particularly affects employees in vulnerable employment.

Recent trends have been identified in sexual harassment cases and it is, therefore, necessary to consider if the newly adopted Code of Good Practice on the Prevention and Elimination of Violence and Harassment in the World of Work of 2020 is fit for purpose to deal therewith. If sexual harassment persists, so the Constitution becomes an eidolon, and its promises of equality and dignity remain equally elusive.

First, CCMA trends show that there has been a significant increase in sexual harassment cases. This trend indicates that the existing legislative mechanisms designed to deal with instances of sexual harassment have failed to deter such unwanted conduct. Worryingly, this trend has also been coupled with increasing cases in the public sector.

The Labour Appeal Court recently stated that sexual harassment committed by a public official constitutes serious misconduct as it amounts to an abuse of a public position of authority. In this case, a member of the public was sexually harassed on two occasions at the Edenvale vehicle licensing centre.

Secondly, there has been an increased use of indirect remedies to deal with sexual harassment. The primary remedy available to victims of sexual harassment is section 6(3) of the Employment Equity Act 55 of 1998, which treats sexual harassment as an incidence of unfair discrimination.

Much of the ineffectiveness in combatting sexual harassment has to do with the coupling of the concept to concepts of equality and unfair discrimination. Although harassment cases may be referred to the CCMA for arbitration, litigants have found it challenging to meet the standards of proving unfair discrimination and damages are limited to actual damages or R224,080.30 whichever is greatest.

As bringing a sexual harassment case may be destructive to the employment relationship, many employees will inevitably choose not to bring such a case where their future employment is at stake. In many cases, employees have chosen indirect remedies such as the constructive dismissal instrument in the Labour Relations Act.

The Labour Court has recently accepted that an employee who was subjected to derogatory comments because of his sexuality was constructively dismissed. Nevertheless, this remedy sets a high standard for constructive dismissal at “intolerability”. In addition, this remedy requires the employee to terminate the employment relationship, and the remedies of reinstatement and reemployment have generally been regarded as inappropriate. Compensation is also subject to statutory limits.

There have also been cases where employees used common-law delictual remedies and, in one instance, an employee was awarded R4-million — but litigation took 19 years.

Thirdly, there have been several incidences where perpetrators of sexual harassment received slap-on-the-wrist sanctions despite the seriousness of the offence. Some examples: The South African Local Government Bargaining Council recently held that, based on the perpetrator’s clean disciplinary record and 10 years of service, the sanction of dismissal was too harsh and replaced it with a final written warning. The Labour Appeal Court later lambasted the Bargaining Council and held that the council had failed to look at all the factors to determine the sanction — such as the seriousness of the misconduct and the effect of the conduct (the Ekurhuleni case).

In the recent McGregor case, an employee was dismissed for sexual misconduct; however, a minor technical flaw led to the dismissal being procedurally unfair. The arbitrator awarded the employee compensation equivalent to six months’ remuneration. The Labour Court and Labour Appeal Court agreed. However, the Constitutional Court found that the appropriateness of compensation must always be understood within the context of the dismissal, In this case, sexual harassment. The Constitutional Court reduced the compensation to two months’ remuneration.

Fourthly, there is still a tendency to deal with sexual harassment in terms of patriarchal norms. In one case, the CCMA rejected the complainant’s version because she didn’t report the incident immediately. The Labour Court warned that commissioners must shed their patriarchal predispositions in their assessment of the evidence and that the CCMA’s findings were out of step with society’s fight against gender inequality and a throwback to times where anything short of rebuffing an unwelcome advance in the strongest terms, sufficed for consent.

There is no standard uniform reaction to sexual harassment. In the Ekurhuleni case, the Labour Court was unwilling to accept the evidence of a member of the public who claimed that she was sexually harassed by a staff member on two occasions because there was some inconsistency in her testimony as she didn’t report the matter after the first incident and because she didn’t seek out another employee at the second encounter. However, the Labour Appeal Court held that the Labour Court only further contributed to the indignity endured by the survivor.

Fifthly, there has been a move towards utilising a subjective test focusing on the survivor’s perception, specifically in several CCMA cases. Such an approach is problematic because it can include forms of conduct that only an overly sensitive person would deem harassment. It is also open to abuse by complainants.

In racial harassment cases, the Constitutional Court has endorsed an objective approach focusing on the perpetrator’s actions. This approach is problematic as it can manifest in an unfair outcome and perpetuate the status quo by condoning behaviour in which women are objectified and defined by their sexuality. Instead, the Labour Appeal Court has endorsed an approach that combined subjective and objective elements, focusing on the survivors’ perceptions and if such a perception was reasonable.

Courts should consider all conceptual factors, and in the Campbell Scientific Africa case, it was a decisive factor for the Labour Appeal Court that the victim was a young woman close to 25 years the perpetrator’s junior.

Sixthly, labour remedies are inapplicable in cases involving sexual harassment by third parties. In Samka v Shoprite Checkers, the Labour Appeal Court held that the Employment Equity Act applies only to the actions of the employee or the employer. The court held that employers exercise authority over employees only and not over customers, and there is no basis upon which the employer could be held responsible for the actions of third parties.

What then is the way forward? On 18 March 2022 the minister of employment and labour promulgated the Code of Good Practice on the Prevention and Elimination of Violence and Harassment in the World of Work of 2020.

The Code is based on the Convention on Violence and Harassment in the World of Work 190 of 2019 of the International Labour Organization and it requires large scale legislative amendment, chiefly because it uncouples sexual harassment from unfair discrimination and equality. Instead, it positions sexual harassment within a broader framework (which includes workplace bullying) to address various forms of workplace violence and harassment.

The Code recognises that harassment in general and sexual harassment, in particular, may be dealt with in terms of other statutes such as the Labour Relations Act, the Promotion of Equality and the Prevention of Unfair Discrimination Act, the Occupational Health and Safety Act, the Protected Disclosures Act and the Protection from Harassment Act. The code requires increased education and training, especially for CCMA and bargaining council commissioners and labour court judges. The code also adopts a subjective and objective test to determine discrimination.

Several principles are however missing from the code or deserve more attention. South African law must provide for stricter sanctions in general, but especially for public employees. Clearer guidelines on sanctions are also needed as the code allows for both warnings and dismissals for “minor instances of harassment”. The code also allows for a perpetrator to be transferred to another department or employer if found guilty.

The question must be asked if this amounts to justice for the victims of sexual harassment and if the employer would not simply be transferring the problem to another department? South African law should also address fragmentation, as sexual harassment is currently dealt with in terms of various statutes and in terms of the common law.

The code extends its protection to employees who were harassed by third parties. But this is at odds with the vicarious liability provisions of the EEA and the interpretation given thereto by the courts.

Clearer guidelines regarding the treatment of victim evidence are also needed to militate against patriarchal tendencies.

The code acknowledges that perpetrators may still be criminally liable for their actions and that employers may be held vicariously liable in terms of the EEA.

Corporate criminal liability may ultimately be needed so that employers finally take sexual harassment seriously. DM