The above act (Protection From Harassment Act) came into legal effect on the 27th April 2013, mainly to provide extra protection from harassment for victims of stalkers and protection from sexual harassment. The act also caters for domestic violence but can also affect the workplace.
Harassment”, briefly, means to directly engage in conduct that causes harm or inspires the reasonable belief that harm may be caused to the complainant or a related person by unreasonably following, watching or pursuing the complainant or a related person, or engaging in verbal, electronic or any other communication aimed at a complainant or a related person, by any means, whether or not conversation ensues or sending, delivering or causing the delivery of letters other objects to the complainant or a related person or amounts to sexual harassment.
Harm” is widely defined to mean any mental, psychological, physical or economic harm
“Sexual harassment”, briefly, means any unwelcome sexual attention from a person who knows or ought reasonably to know such attention is unwelcome; unwelcome explicit or implicit behaviour, suggestions, messages or remarks of a sexual nature that have the effect of offending, intimidating or humiliating the complainant; implied or expressed promise of reward for complying with a sexually orientated request; implies or expressed threat of reprisal or actual reprisal for refusal to comply with a sexually orientated request
In essence, a complainant may apply to a magistrate’s court, with a written affidavit, for a protection order from the harassing party (“respondent”). A clerk of the court is to assist where necessary and advise the complainant of the right to also lodge a criminal complaint against the respondent of crimen injuria, assault, trespass, extortion or any other offence which has a bearing on the persona or property of the complainant or related person.
The magistrate’s court may make an interim protection order in the absence of the respondent if satisfied there is prima facie evidence [“on the face of it”] that the respondent has engaged in harassment. Such a protection order takes effect the moment it is served on the respondent, along with a warrant of arrest that is suspended provided the respondent complies with the protection order.
The respondent must then show cause on the return date specified in the notice why a final protection order should not be issued. The court may issue a final protection order if it finds, on a balance of probabilities, the respondent has engaged or is engaging in harassment [emphasis added].
A protection order may place restrictions such as a proximity restriction on the respondent to the complainant.
Complainants are advised against the making of a false report as such will be a criminal offence and subject to a fine or imprisonment for a period not exceeding five years. The same would apply to those who fail to comply with a protection order.
What does this mean for the workplace?
Firstly, any employee who suffers sexual harassment is free to apply to the magistrate’s court for a protection order. Clearly, in such a case the employer must ensure the complainant and respondent are placed in a position whereby there is compliance with the protection order. That might mean transferring one or the other to a ‘no-contact’ area but I suggest the employer transferring the complainant may, in terms of the Employment Equity Act, be seen as harassment. There would appear to be prima facie evidence to rather suspend the respondent.
Secondly, sadly, there exists a phenomenon in the workplace known as general harassment or ‘bullying’, often by management but also by fellow employees (see my blog http://focussedoutcomes.co.za/?p=146 dealing with bullying in the workplace) and it is entirely possible an employee could approach the court for a protection order. In such a case, if successfully applied, the same situation arises as above.
South African legislation demands each individual should be treated with dignity and respect at work. Employers have a duty to protect their workers from harassment and to inform and educate them about this issue. Employers are also encouraged to develop a code of conduct on harassment, beyond just sexual harassment.
Employers are reminded of the Constitutional Court ruling[1] where a manager was found guilty of sexually harassing an employee and the court found the employer to be vicariously liable for the conduct of the manager because the employer failed to take appropriate steps to prevent the harassment.
Graham Nicholls – Focussed Outcomes
graham@focussed-outcomes.co.za
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