Sexual harassment in the workplace is an issue that is hardly ever spoken about, let alone reported, despite it being an issue which takes place time and again within the workplace.
Kevin Isaacs* had been working 6 months as a store manager for a clothing retailer based in Goodwood, Cape Town. His co-workers, Lorraine Arnold* and Annelie Gouws*, had both lodged written grievances with their director, Lungi Moko*, against Kevin Isaacs on 12 May 2011 relating to sexual harassment in the workplace.
Lorraine Arnold had stated in her grievance form that during April 2011, Kevin Isaacs had been acting inappropriately towards her. His conduct included him touching her, making uninvited sexual comments as well as trying to kiss her, even after she had told him she was not comfortable with his behaviour.
Annelie Gouws stated in her grievance form that during the same period of time Kevin Isaacs had made unsolicited and unwelcome conduct of a sexual nature towards her as well. Annelie Gouws specified that Kevin Isaacs went as far as using physical force in attempt to obtain what he desired. She stated further that he also threatened to fire her if she had told anyone.
After their grievances had been lodged with Lungi Moko, it had remained unresolved. Lungi Moko then decided to follow the company’s internal procedure. Kevin Isaacs was given a notice of suspension from employment prohibiting him from continuing his work at the clothing retailer while an investigation into the matter was processed. The company suspended Kevin Isaacs on full pay for the period of his suspension.
As procedure requires, a notice to attend a disciplinary hearing was issued to Kevin Isaacs, informing him to attend a disciplinary hearing in June 2011 in regard to the accusations made. This notice set out the charges and allegations against him, in addition to notifying him of the date, time and venue of the hearing. This notice also informed Kevin Isaacs that he had adequate time to prepare his case; that he could bring witnesses to the hearing; moreover that he is entitled to a representative who is a fellow employee. Kevin Isaacs had signed the notice to reflect receipt of it and was also given a copy.
At the disciplinary hearing, an independent person chaired and presided over it. Kevin Isaacs pleaded not guilty to the charges read out to him; the charges being serious misconduct in the form of the sexual harassment of Lorraine Arnold and Annelie Gouws. Each party was then given the opportunity to state their version of events.
In terms of the Code of Good Practice on the Handling of Sexual Harassment Cases in South Africa, sexual harassment can be defined as the ‘unwanted conduct of a sexual nature’ which is distinguished from ‘behaviour that is welcome and mutual’. Furthermore, sexual attention would be determined as sexual harassment if the conduct continues, or if the behaviour had happened once only; and/or if the recipient has elucidated that such behaviour is unacceptable or unpleasant; and/or if the wrongdoer ought to have recognised the conduct as being improper.
Kevin Isaacs was subsequently dismissed as a result of the chairperson’s findings and recommendation based on the merits of the case as well as the Code of Good Practice on the Handling of Sexual Harassment. Kevin Isaacs took the matter further and declared a labour dispute at the CCMA. In terms of CCMA rules, Kevin Isaacs had 6 months from the date on which the dispute arose to refer the matter to the CCMA. Kevin Isaacs completed a case referral form, known as LRA Form 7.11, which are available at the CCMA offices or the CCMA website. He sent this form to the employer by means of registered post. Thereafter, a copy of this form was hand-delivered to the office at the CCMA. The CCMA notified both Kevin Isaacs and his employer of the date, time and venue of the hearing.
At the CCMA conciliation hearing, no agreement was reached between Kevin Isaacs and his employer resulting in the matter being unresolved. It was then referred to the Labour Court. He had 90 days from the date of dismissal in which to refer a matter to the Labour Court. At the Labour Court each party’s version was heard and in turn they each had the opportunity to call witnesses to support their case. After hearing both sides and taking into consideration the merits of the case, the Judge had decided not to rule in favour of Kevin Isaacs. Therefore, his dismissal was found to be fair and lawful.
It is important for employers to realise that every so often sexual harassment takes place within their work environment. Therefore, it is vital that this topic is addressed in the workplace and for employers to ensure that certain measures are put into place with the aim of eradicating sexual harassment in the workplace. The Code of Good Practice on the Handling of Sexual Harassment provides suitable procedures on how to deal with these types of matters and in addition assists in preventing them from happening. Thus, employers are encouraged to develop and implement policies relating to sexual harassment in the workplace to safeguard their businesses, and most importantly their employees from this type of cases.
*Not their real names
For further information on a copy of the Code of Good Practice on the Handling of Sexual Harassment or any labour related matters, you can contact Bernard Reisner:
W.Tel no.: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 8714
Researcher: Waseemah Doutie