Attorney Erica Emdon contends that mining operations should put in place complainant-centred policies for dealing with workplace sexual harassment
The past few weeks have witnessed some high-profile incidents of violence against women, once again highlighting how extensive and pervasive gender-based violence continues to be in South Africa. It takes many forms, including femicide, rape and sexual violence, as well as workplace sexual harassment. Sexual harassment at work can be reduced, managed and even eradicated, if companies take their duty of care seriously and introduce measures to make the employment situation safe.
A strike in June at the Lanxess chrome mine, in the Rustenburg area, concerned a sexual harassment situation, signalling how serious the issue has become. Although the strike was also about trade union rivalry, the sexual harassment element is instructive. About 290 striking workers remained underground from June 19 to 27 without food and clean water, demanding that management immediately suspend and discipline an alleged perpetrator of sexual harassment. It took nine days for an agreement to be reached and for the workers to return to work.
In 2002, the South African Mining Charter introduced a provision requiring that 10% of the staff complement of mining companies be female. This quota had been exceeded by 2018, with Minerals Council South Africa’s Facts and Figures 2018 pocketbook stating that 15% of employees in the mining sector were women. Academic and writer Asanda Benya, who has undertaken research on female workers on the mines in the Rustenburg area, states that female employees on the mines remain predominantly in the lower- paying ranks, with many working underground. Underground female miners are generally managed by mine captains and shift bosses who, invariably, are men, and this has been identified as a fraught power situation, rendering the female employees particularly vulnerable.
A workplace characterised by hierarchical power relations is ‘nurturing ground’ for sexual harassment. Positions that grant the incumbents power and authority remain skewed in favour of men, with few women occupying managerial or senior positions. In this context, gender-based violence continues to prevail, thriving on these unequal power relations.
The Employment Equity Act imposes on employers the duty to eliminate unfair discrimination in the work environment, including sexual harassment, which has been held by the courts to be a form of unfair discrimination. And taking this forward is the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace, issued by the Minister of Labour in 2005 in terms of the Employment Equity Act.
The code places an obligation on employers to create a safe environment for female workers and ensure that the workplace respects the dignity of employees and that those lodging sexual harassment complaints will not feel that their grievances are ignored or trivialised, or fear that there will be reprisals. It requires that polices – of which employees must be made aware – be put in place, clearly stating that there will be consequences for alleged perpetrators, including disciplinary action and dismissal. Employers must clarify the procedures for reporting sexual harassment and, once a report has been made, they must take action to eliminate it. Most importantly, the code defines sexual harassment in some detail in order to prevent uncertainty as to what constitutes such harassment.
In SA Metal Group (Pty) Ltd Commissioner, a 2014 case heard in the Labour Court, the court held that the provisions of the code had to be applied. In PE v Ikwezi Municipality and another, a 2016 case, the court went further, stating that employers should provide training on the code for their employees.
A 2006 case, Piliso v Old Mutual, draws attention to the situation an employer may find itself in, should it fail to take steps to eliminate the alleged conduct. Once a complaint has been brought to an employer’s attention, the employer must take action. “It is accepted and trite that an employer has a duty to take reasonable care for the safety of its employees and to provide its employees with a safe working environment.”
Managers frequently demonstrate a remarkable level of ignorance concerning how complaints of sexual harassment in the workplace should be dealt with. A complainant-centred policy on sexual harassment should by now be integrated into all workplace environments. This would enable complaints to be made to specially designated people that are not part of management and would set out the procedures to be followed when dealing with complaints. Leaving it to human resources managers can prove to be problematic, as they might collude with alleged perpetrators who are their management colleagues, since, structurally, they occupy the same level of seniority in the company.
The best approach should focus on preventing the development of situations that spill over into the media or result in strike action. If a mine has a good, complainant-centred sexual harassment policy, with clear procedures, and addresses complaints expeditiously and in line with the policy, incidents of sexual harassment will be dealt with internally, confidentially and with care. The victim must be enabled to report the harassment so that it is brought to an end, and the alleged perpetrator should be given a fair hearing. Depending on the severity of the harassment, different consequences may result, and these should be well known throughout the company.
Policies should clearly spell out what sexual harassment is so that no one can claim that he or she did not know that his or her behaviour constituted sexual misconduct.
Emdon is an attorney focusing on gender issues in the workplace - email@example.com