Regverdiging van ontslag van 'n werknemer skuldig aan seksuele teistering

Abstract

Although the importance of the rights of employees has been emphasised since the establishment of South Africa as a democratic state in 1994, sexual harassment in the workplace has remained an ever-present evil. Due to the subordinate position of an employee in the workplace, it often occurs that employers, managers and other persons in positions of authority abuse their powers to harass subordinates. The following questions arise: what is the appropriate sanction in case of sexual harassment and how serious should sexual harassment be to warrant the dismissal of an employee found guilty thereof? It is important to firstly observe South African legislation and regulating instruments in this regard, in order to determine the nature and scope of sexual harassment in the workplace. Sexual harassment is not a simple concept, as it includes many considerations and inalienable notions. South African legislation provides for physical, verbal and non-verbal harassment and equates sexual harassment to discrimination. Sexual harassment as a form of discrimination and gender-based violence is addressed on an international level. Due to this consideration, it must be determined whether South African labour law regarding sexual harassment complies with international standards. The prevention, management and effects of sexual harassment are regulated by several national and international instruments. These instruments are interdependent and must comply with international standards. The main focus of this study is dismissal as an appropriate sanction of an employee found guilty of sexual harassment. Although much has been written on the subject of sexual harassment, it is apparent that there are no fixed guidelines regarding the dismissal of employees who are guilty of sexual harassment if one considers the conflicting views of the courts in South Africa. As is the case in South African law, English law equates sexual harassment to discrimination. Due to the fact that discrimination constitutes a serious infringement on the right to dignity and equality, the European Union requires member states to regulate sexual harassment by means of national legislation. England conforms to this requirement and applies legislative and other instruments accordingly. English courts and tribunals are hesitant to interfere with the decisions of employers, which means that dismissal as appropriate sanction depends on the reasonableness of the employer. Aforementioned approach, as well as effective internal procedures, results in the internal resolution of sexual harassment claims, which means that these claims are not regularly referred to courts and tribunals. Although South African legislation theoretically complies with international standards relating to the description of sexual harassment and the exposition of certain procedures, the implementation of aforementioned procedures leaves much to be desired. Thus, it is important to observe the implementation and functioning of procedures in English law and adjust national legislation, policies and procedures accordingly.