Take tough steps on sex pests

2008-03-11 00:00

Sexual harassment in the workplace is a very serious issue and employers need to be extra careful when dealing with this issue.

According to Boitumelo Bogatsu, senior associate at Garlicke & Bousfield Inc., the case of Piliso versus Old Mutual Life Assurance Co (SA) Ltd & Others (2007) 28 ILJ 897 (LC) was rather unique in that the perpetrator of the sexual harassment was not known.

“It was in fact not known whether the perpetrator was an employee or not. This can happen in companies where the general public, for example, have access to the premises.

“The Labour Court could in this case not find the employer liable on the basis that an employee had perpetrated the harassment. The Labour Court, however, did not completely absolve the employer of some responsibility.”

The court found that section 23(1) of the Constitution, which deals with the right to fair labour practices, had been violated.

The court noted: “I do not for a moment hesitate to conclude that, in the event of an employee having been traumatised in the workplace that even if the employer, or the employee for that matter, is unable to identify the perpetrator, the legal convictions of the community will reasonably require and expect an employer … to commence a process of investigation which will leave no reasonable stone unturned.”

The Labour Court has set out the steps that an employer is expected to take even if the perpetrator is unknown.

Bogatsu said that the steps are:

• The employer must “leave no stone unturned” to find the culprit. The employer cannot adopt the attitude that no action can be taken until the employee identifies the culprit;

• The affected employee must be given the necessary support;

• The employer must keep the employee and the employee’s representative informed;

• The employer is expected to take all the necessary steps to limit or reduce the risk of possible repeats of such conduct.

Failure to do the above may find the court awarding Constitutional damages for unfair labour practices to an employee.

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