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NOTICE 1367 OF 1998
NATIONAL ECONOMIC DEVELOPMENT AND LABOUR COUNCIL
Amendment August 2005.
LABOUR RELATIONS ACT, 1995
NOTICE OF CODE OF GOOD PRACTICE ON THE HANDLING OF SEXUAL HARASSMENT CASES
Notice is hereby given in terms of section 203 (2) of the Labour Relations Act, 1995 (Act No. 1995), that the National Economic Development and Labour Council has issued under section 203 (1) of that Act a code of good practice on the handling of sexual harassment cases as set out in the Schedule.
CODE OF GOOD PRACTICE ON THE HANDLING OF SEXUAL HARASSMENT CASES
2. Application of the code
(1) Although this code is intended to guide employers and employees, the perpetrators and victims of sexual harassment may include:
(2) Nothing in 2(1) above confers the authority on employers to take disciplinary action in respect of non-employees.
(3) A non-employee who is a victim of sexual harassment may lodge a grievance with the employer of the harasser where the harassment has taken place in the workplace or in the course of the harasser's employment.
3. Definition of sexual harassment
(1) Sexual harassment is unwanted conduct of a sexual nature. The unwanted nature of sexual harassment distinguishes it from behaviour that is welcome and mutual.
(2) Sexual attention becomes sexual harassment if:
4. Forms of sexual harassment
(1) Sexual harassment may include unwelcome physical, verbal or non-verbal conduct, but is not limited to the examples listed as follows:
(2) Sexual favouritism exists where a person who is in a position of authority rewards only those who respond to his/her sexual advances, whilst other deserving employees who do not submit themselves to any sexual advances are denied promotions, merit rating or salary increases.
5. Guiding principles
(1) Employers should create and maintain a working environment in which the dignity of employees is respected. A climate in the workplace should also be created and maintained in which victims of sexual harassment will not feel that their grievances are ignored or trivialised, or fear reprisals. Implementing the following guidelines can assist in achieving these ends:
(2) This code recognises the primacy of collective agreements regulating the handling of sexual harassment cases, and is not intended as a substitute for disciplinary codes and procedures containing such measures, where these are the subject of collective agreements, or the outcome of joint decision making by an employer and a workplace forum. However, collective agreements and policy statements should take cognisance of and be guided by the provisions of this code.
6. Policy statements
(1) As a first step in expressing concern and commitment to dealing with the problem of sexual harassment, employers should issue a policy statement which should provide that:
(2) Management should be placed under a positive duty to implement the policy and take disciplinary action against employees who do not comply with the policy.
(3) A policy on sexual harassment should also explain the procedure which should be followed by employees who are victims of sexual harassment. The policy should also state that:
(4) Policy statements on sexual harassment should be communicated effectively to all employees.
Employers should develop clear procedures to deal with sexual harassment. These procedures should ensure the resolution of problems in a sensitive, efficient and effective way.
(1) Advice and Assistance
Sexual harassment is a sensitive issue and a victim may feel unable to approach the perpetrator, lodge a formal grievance or turn to colleagues for support. As far as is practicable employers should designate a person outside of line management whom victims may approach for confidential advice. Such a person:
(2) Options to resolve a problem
(3) Informal procedure
(4) Formal procedure
Where a formal procedure has been chosen by the aggrieved, a formal procedure for resolving the grievance should be available and should:
(5) Investigation and disciplinary action
(6) Criminal and civil charges
A victim of sexual assault has the right to press separate criminal and/or civil charges against an alleged perpetrator, and the legal rights of the victim are in no way limited by this code.
(7) Dispute resolution
Should a complaint of alleged sexual harassment not be satisfactorily resolved by the internal procedures set out above, either party may within 30 days of the dispute having arisen, refer the matter to the CCMA for conciliation in accordance with the provisions of section 135 of this Act. Should the dispute remain unresolved, either party may refer the dispute to the Labour Court within 30 days of receipt of the certificate issued by the commissioner in terms of section 135(5).
(1) Employers and employees must ensure that grievances about sexual harassment are investigated and handled in a manner that ensures that the identities of the persons involved are kept confidential.
(2) In cases of sexual harassment, management, employees and the parties concerned must endeavour to ensure confidentiality in the disciplinary enquiry. Only appropriate members of management as well as the aggrieved person, representative, alleged perpetrator, witnesses and interpreter if required, must be present in the disciplinary enquiry.
(3) Employers are required to disclose to either party or to their representatives, such information as may be reasonably necessary to enable the parties to prepare for any proceedings in terms of this code.
(4) The relevant provisions of section 16 of this Act will apply to the disclosure of information in terms of this code.
9. Additional sick leave
Where an employees existing sick leave entitlement has been exhausted, the employer should give due consideration to the granting of additional sick leave in cases of serious sexual harassment where the employee on medical advice requires trauma counseling.
10. Information and education
(1) The Department of Labour should ensure that copies of this code are accessible and available.
(2) Employers and employer organisations should include the issue of sexual harassment in their orientation, education and training programmes of employees.
(3) Trade unions should include the issue of sexual harassment in their education and training programmes of shop stewards and employees.
(4) CCMA commissioners should receive specialised training to deal with sexual harassment cases