A critical analysis of labour leg islation on sexual harassment in the workplace

Abstract

There is a recurring problem of sexual harassment in South African workplaces. The disclosures in 2017 and 2018 social media campaign of “#MeToo #Notokay #NotInMyName” demonstrates that there is a high rate of sexual harassment around the world, including in the workplace. This study raises concern about both the interpretation and labour laws and policies regulating sexual harassment in the workplace. This study strives to investigate whether South African labour laws provide adequate measures to curb sexual harassment in the workplace. The original Code of 1998 and the amended 2005 Code leans more on application of subjective approaches when dealing with sexual harassment in the workplace. The CCMA and court decisions bear testimony to this claim. Firstly, this study contends that a subjective approach may lead to malpractice in case law by overly sensitive employees who may interpret any situation as hostile despite the alleged conduct. Moreover, this mini-dissertation agues for the adoption of reasonable victim person tests based on the facts and lodge of complaint when dealing with sexual harassment in the workplace, taking into consideration that it comprises both the subjective test and objective test. Sexual harassment is defined as unwanted conduct that infringes upon the employee’s human right to dignity, privacy and bodily integrity. This analysis reflects on the nature and forms of sexual harassment, the factors that the court could consider in determining what constitutes unwanted conduct, the impact of sexual harassment on the employee and its effect on the human rights of employees. Furthermore, it examines the remedies that could be invoked by the victims of sexual harassment in the workplace. The analysis concludes with recommendations that may be adapted by South African labour laws in prohibiting sexual harassment in the workplace.