Discipline and Dismissal

Written by Jeanne Hugo



South Africa was one of the first countries to create extensive legislation concerning sexual harassment in the workplace. As such, it is of the utmost importance that all companies commit to a policy regarding sexual harassment – which must then be communicated to all employees – and enforce said policy without fail. Even more so, the law requires the employer to create a safe working environment for its employees.
So, what to do when an employee approaches you, as manager or employer, with a complaint?

1. Step one: be sure of the facts
As a superior, a detailed knowledge of what constitutes sexual harassment is an invaluable asset. Sexual harassment is defined by the Code of Good Practice on the Handling of Sexual Harassment Cases (an addendum to the Labour Relations Act of 1995) as "unwanted conduct of a sexual nature". It can take the form of physical, verbal or non-verbal conduct. Physical conduct includes all forms of unwanted contact, from obvious examples such as rape, to a strip search performed in the presence of the opposite sex. Verbal forms of harassment may include sexual innuendoes, suggestions, jokes, sexual advances and pressure to perform acts of a sexual nature in order to maintain job security or obtain career advancement.

Non-verbal conduct may include "unwelcome gestures, indecent exposure and the unwelcome display of sexually explicit pictures and objects".  This foundation of knowledge is important because it may be the case that the aggrieved employee is uncertain if what happened to him or her constitutes sexual harassment.

2. Step two: informal or formal procedure
Two paths are open to the employee to resolve the matter: an informal or formal procedure. The Code of Good Practice stresses that, if possible, the company should provide employees with assistance in the form of an advisor (outside of line management) to whom the person may turn for advice and support on a confidential basis. Such an advisor may help the employee decide on an option.

Before embarking on a resolution process, it should be noted that the importance of confidentiality is also stressed. The identities of all parties involved should be kept confidential and, in the case of a disciplinary enquiry, "only appropriate members of management as well as the aggrieved person, representative, alleged perpetrator, witnesses and interpreter if required, must be present . . . ".
Informal procedure:
By following the informal route, it may be sufficient for the employee to meet with the person engaging in the unwanted behaviour and simply explain to him or her that said conduct is unwelcome and is making the employee uncomfortable. The presence of the advisor and supervisors of the employees involved is recommended.

If the aggrieved employee is uneasy about the prospect of a face to face meeting, a written complaint, in which the nature and consequences of the unwanted conduct is clearly explained to the offender, may also suffice. Should neither of these informal procedures resolve the matter, as may be the case in serious incidents of sexual harassment, it is recommended that the employee follow a more formal route.
Formal: Internal or External
Each company has its own internal, formal disciplinary procedure. Hereby, the aggrieved employee makes a formal complaint, be it through an internal grievance procedure or otherwise, which must then be investigated by the company. If possible, objective proof or witness accounts should be provided to support the claim. Note that, by law, "serious incidents of sexual harassment or continued harassment after warnings are dismissible offences". Guidelines for dismissal based on misconduct can be found in Schedule 8 of the Labour Relations Act of 1995.

If either party is not satisfied with the outcome of this investigation, the Code of Good Practice provides for two further external options:

  • The offended party has the right to press "separate criminal and/or civil charges against an alleged perpetrator"; and
  • either party may refer the matter for dispute resolution (within 30 days of the dispute having risen) to the Commission for Conciliation, Mediation and Arbitration (CCMA). The appointed commissioner will attempt to resolve the dispute through conciliation and, if it remains unsolved, arbitrate the dispute. If the dispute is still unresolved, either parties may refer their case to the Labour Court.


3. Step three: follow up with the employee

After the matter has gone through the available channels ­– and has, hopefully, been resolved ­– it is the responsibility of the employer or supervisor to schedule regular meetings with the aggrieved employee to make certain that the unwelcome conduct has indeed ceased. Sexual harassment is a traumatic experience and the victim may be in need of professional counselling. It is also recommended that special leave be granted to the employee, even if he or she has exhausted their sick leave entitlement.

Notice 1367 of 1998: Notice of Code of Good Practice on the Handling of Sexual Harassment Cases.

Labour Relations Act 1995

  • Written by Jeanne Hugo
  • Our appreciation to www.careers24.co.za for permission to publish this article


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