Employers must consider that women are especially vulnerable to sexual harassment
Opinion / 22 September 2019, 2:22pm / Michael Bagraim
We are going through a dark period in our history in South Africa at the moment.
Firstly, we read and see accounts of women who are abused at home, in the streets and at work. Secondly, we have all been affected by the xenophobia throughout the country. Both affect the workplace and both must be tackled by employers immediately.
Every employer owes a duty of care to all employees, including those coming to work and going back home.
This duty of care must take into account that the women are especially vulnerable when it comes to sexual harassment and gender-based violence.
Sexual harassment at the workplace has not abated and despite policies and interventions from most employers, complaints are at an all-time high.
Invariably, sexual harassment and gender-based violence should lead to a disciplinary enquiry, and thereafter dismissal, if found guilty.
Furthermore, reports of this nature should also be reported to the police. It must be remembered that women assaulted at work have not only an action against the perpetrator, but also against the employer for not providing the proper protection.
There have been many cases against employers which have resulted in punitive financial awards against the company for the employees’ pain and suffering.
All employers would be wise to have proper policies in place enabling them to handle complaints, grievances and reports of any harassment or gender-based violence.
When staff are first employed, they should be taken through an induction process in which they sign off each one of the codes of conduct confirming that they know and understand these codes and will abide by them.
A signed copy of each code of practice should be kept in each employee’s file to ensure that no defence of ignorance can be raised at a later stage.
It is common practice for activists at each workplace to raise complaints on social media about allegations of sexual harassment before these allegations have been proven to be correct.
Staff should be warned that unfounded allegations could also lead to disciplinary action against the complainants, especially when the allegations prove to be unfounded.
There is a danger in this time of heightened anxiety that a rumour could be spread against a certain individual thereby causing damage and possible litigation.
Staff should be alerted to the fact that there are proper procedures to raise internal grievances and/or processes to approach the police.
Sexual harassment can be subtle and includes remarks against, and the negative treatment of, women. Businesses should have codes of good practice for pregnant women and women who have just returned to work after giving birth.
Over and above this, it is the law that there must be equal pay for equal work, and women are entitled to have access to the same promotion prospects as their male counterparts.
Reported statistics show us that women are still earning less and have fewer opportunities to take leadership positions at the workplace.
Unions should be alerted to the ill treatment of women and should regularly place women’s rights on their annual negotiation’s agenda.
Over the past 35 years I have very rarely seen women’s rights as being part of the annual negotiations.
I was shocked recently to hear from an official at the Department of Employment and Labour that they were not aware of women’s rights with regard to breastfeeding at work.
We still have a long way to go in South Africa with regard to education and enlightenment of our men, both at work and within the authorities.
On the issue of xenophobia, it is vital for employers to extend their duty of care to their foreign staff who are being harassed on their way to and from work.
Likewise, it has been brought to my attention that in many work environments the South African staff have reacted incredibly negatively towards their foreign counterparts.
Foreign workers have exactly the same rights as South African workers. These rights are protected by our Constitution and all our labour legislation. There should not be a differing wage for a foreign worker, and any employer discriminating against a foreign worker should face the full might of the CCMA and our labour courts.
On the other hand, it is imperative for every employer to ensure that when they are recruiting staff they first ascertain whether there is a suitably qualified local South African citizen who can do the job.
If the position cannot be filled by a local worker, then a proper application must be made to the Department of Employment and Labour (DOEL) for a work permit to engage a foreign employee.
The application for work permits has become cumbersome and tedious but the structures have to be followed. It has been brought to my attention on numerous occasions that foreign workers have presented work permits to their employers who have then merely copied these work permits, placed them in the employees’ file and gone ahead with the appointment.
Now, with the heightened tensions, DOEL has asked its inspectors to check the veracity of these work permits. Unfortunately, many of these work permits have been forged, leading to a disastrous situation.
Firstly, the employer could face criminal action and fines from the department.
Secondly, the employee would then have to be dismissed and invariably would have to leave South Africa.
After much discussions with various foreign workers, it has been brought to my attention that many of these workers have bought these permits thinking that they were legal and valid. Invariably the employers have likewise trusted that the permit was legal. It is difficult to ascertain the legitimacy of these permits but it is imperative for employers to enquire at their local DOEL.
Many employers have arranged private transport for their foreign employees who face an incredibly hazardous journey to and from work on a daily basis.
This private transport should be safe as once again it is the employer’s duty to ensure the safety of their employees.
As a suggestion, I have advised employers to ask their foreign workers to train at least two South African workers to perform their function so that when the time comes for the foreign worker to leave for whatever reason, there is a local who can perform the necessary functions.
It must be remembered that the set minimum wages and applicable terms and conditions for any industry must be equally enforced regardless of where the worker comes from.
* Michael Bagraim is a labour lawyer.
** The views expressed here are not necessarily those of Independent Media.