S UBMISSION O N T HE P ROTECTION F ROM H ARASSMENT B ILL 30 S EPTEMBER 2010 P

S ubmission o n t he p rotection f rom h arassment b

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: S UBMISSION O N T HE P ROTECTION F ROM H ARASSMENT B ILL , 30 S EPTEMBER 2010 P AGE 4 of 13
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C URRENT L EGISLATION FOR H ARASSMENT B ASED O N D ISCRIMINATION A ND P REJUDICE A. Civil Law Harassment, and more specifically, sexual harassment is addressed in the Labour Relations Act 66 of 1995, the Employment Equity Act 55 of 1998, the Employment of Educators Act 76 of 1998, the Further Education and Training Act 98 of 1998 and the Municipal Systems Act 32 of 2000. This legislation aims to deal with sexual harassment and prevent its recurrence within the workplace. The Labour Relations Act 66 of 1995 focusses on the role of the Commission for Conciliation, Mediation and Arbitration (CCMA) in the prevention of sexual harassment in the workplace (Section 115, subsection 3). NOTICE 1367 OF 1998 (Notice of code of good practice on the handling of sexual harassment cases) issued by the National Economic Development and Labour Council (NEDLAC) specifies the types of conduct that constitute sexual harassment as follows: 4. Forms of sexual harassment (1) Sexual harassment may include unwelcome physical, verbal or non-verbal conduct, but is not limited to the examples listed as follows: a. Physical conduct of a sexual nature includes all unwanted physical contact, ranging from touching to sexual assault and rape, and includes a strip search by or in the presence of the opposite sex. b. Verbal forms of sexual harassment include unwelcome innuendoes, suggestions and hints, sexual advances, comments with sexual overtones, sex-related jokes or insults or unwelcome graphic comments about a person’s body made in their presence or directed toward them, unwelcome and inappropriate enquiries about a person’s sex life, and unwelcome whistling directed at a person or group of persons. c. Non-verbal forms of sexual harassment include unwelcome gestures, indecent exposure, and the unwelcome display of sexually explicit pictures and objects. d. Quid pro quo harassment occurs where an owner, employer, supervisor, member of management or co- employee, undertakes or attempts to influence the process of employment, promotion, training, discipline, dismissal, salary increment or other benefit of an employee or job applicant, in exchange for sexual favours. (2) Sexual favouritism exists where a person who is in a position of authority rewards only those who respond to his/her sexual advances, whilst other deserving employees who do not submit themselves to any sexual advances are denied promotions, merit rating or salary increases. T RIANGLE P ROJECT : S UBMISSION O N T HE P ROTECTION F ROM H ARASSMENT B ILL , 30 S EPTEMBER 2010 P AGE 5 of 13
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The Employment Equity Act 55 of 1998, together with General Notice 1357 of 2005 (Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace) define the forms of conduct that are considered sexual harassment similarly. However, it is the Employment Equity Act that unlike the Labour Relations Act is explicitly concerned with issues of equality and discrimination and draws more directly on the Equality Clause (clause 9 of the
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