In a recent decision of the Labour Court in Platinum Mines Limited v UASA obo Pietersen and Others  ZALCJHB 72 Rustenburg, our courts made a strong statement around sexual harassment in the workplace.
The court went on to say that –
“In the face and growth of global movements such as ‘#MeToo’; ‘The Silence Breakers’; ‘#NotInMyName’, and #BalanceTonPorc or “out your pig”, there is an even greater need for more sensitization to the scourge of sexual harassment in the workplace. Equally so, there is an even greater need for the Commission for Conciliation Mediation and Arbitration (CCMA) and Bargaining Councils to place more emphasis on specialised training to deal with such cases as called upon by the provisions of Item 11.4 of Amended Code of Good Practice. The review application in this case and the manner with which the Commissioner approached the allegations of sexual harassment is a reminder of the need for the urgency and seriousness with which such training is necessary, and for it to be provided on an on-going basis”.
The Labour Court decided that the Employee who was alleged to have committed the harassment had been fairly dismissed, even although he had alleged that he did NOT know that his behaviour was considered as unwanted. In that case the female complainant had rejected the advances and eventually Whatsapped the perpetrator to tell him that his behaviour must stop, but had not reported the behaviour. The court did not agree that “harassers can persist with the unbecoming conduct, with the hope that they will get lucky at some point, as long as the complainant does not report the matter”.
Employers and employees should pay careful attention to this judgment and, in particular, the court’s statement that nowhere in the Code of Good Practice on Sexual Harassment does it require the accused employee to have been aware that their conduct was unwanted and offensive to the complainant in order for the conduct to constitute sexual harassment.
The message from this? It is not good enough for alleged perpetrators of sexual harassment to claim that “I did not know I was sexually harassing you!”
If an organisation is unsure how to handle an allegation of sexual harassment, contact us now at firstname.lastname@example.org