Workplace Sexual Harassment: Your Rights and the CCMA Process

What Constitutes Sexual Harassment?

Sexual harassment in the workplace is unwelcome conduct of a sexual nature that violates a person's dignity or creates a hostile,intimidating, or offensive work environment. It is prohibited under the Employment Equity Act (EEA) and the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace.

Harassment can be:

Quid pro quo: When someone in authority offers work benefits (promotion, raise) in exchange for sexual favors, or threatens job consequences for refusing.
Hostile environment: When unwelcome sexual conduct creates an intimidating or offensive workplace, even without direct threats.

Examples of Sexual Harassment

Unwanted physical contact (touching, hugging, kissing).
Sexual comments, jokes, or innuendos about appearance or body.
Requests for sexual favors.
Displaying or sending sexually explicit images, videos, or messages.
Staring or leering in a sexual manner.
Making sexual gestures or sounds.
Sharing intimate or sexual rumors about colleagues.

Expanded Definition (2024 Updates)

In 2024, the scope of sexual harassment legislation expanded to explicitly include psychological abuse and cyberbullying in the workplace. This means:

Online harassment: Unwelcome sexual messages via email, WhatsApp, social media, or work platforms.
Cyberbullying: Using technology to create a hostile environment through offensive conduct, hostile teasing, or discriminatory language.

Company policies must now cover these digital forms of harassment.

Employer's Legal Obligations

Under the Employment Equity Act, employers have a legal duty to:

1. Implement Anti-Harassment Policies

Every company must have a written policy that:

Defines what constitutes harassment.
Outlines reporting procedures.
Explains investigation processes.
Details disciplinary consequences.
Protects complainants from retaliation.

2. Conduct Risk Assessments

Employers must identify potential harassment risks in the workplace.

3. Provide Training

All employees should receive training on their rights, responsibilities, and the company's harassment policy.

4. Investigate Complaints Promptly

When a complaint is made, the employer must:

Conduct a fair and impartial investigation.
Act swiftly (delays can be seen as tolerance of harassment).
Take appropriate disciplinary action if harassment is proven.

5. Prevent Retaliation

It is illegal to victimize or retaliate against someone who reports harassment.

Vicarious Liability: Employers can be held legally responsible for harassment committed by their employees if they fail to take reasonable steps to prevent it or address complaints.

How to Report Harassment Internally

Step 1: Document Everything

Keep detailed records:

Dates, times, and locations of incidents.
What was said or done.
Names of witnesses.
Screenshots of messages or emails.
Your emotional and physical reaction.

Step 2: Tell the Harasser to Stop (If Safe)

If you feel comfortable, clearly tell the person that their behavior is unwelcome and must stop. Do this in writing if possible.

Step 3: Report to HR or Management

File a formal complaint with:

Your manager or supervisor (unless they are the harasser).
The HR department.
A designated harassment officer (if your company has one).

Submit your complaint in writing and keep a copy.

Step 4: Cooperate with the Investigation

The employer should investigate within a reasonable time (usually 7-14 days). You may be asked to:

Provide a written statement.
Attend meetings or interviews.
Identify witnesses.

Filing a Complaint with the CCMA

If your employer fails to investigate, takes no action, or retaliates against you, you can refer the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA).

Who Can Refer to the CCMA?

Any employee who believes they have been subjected to unfair discrimination, including sexual harassment.

Time Limit

You have 6 months from the date of the alleged harassment to refer the matter to the CCMA. If the dispute is referred late, you can apply for condonation (permission to file late), but you must show good reason.

How to Lodge a Referral

Complete Form 7.11: Download it from the CCMA website or collect it from a CCMA office.
Provide Details: Include your personal details, employer details, and a description of the harassment.
Serve the Employer: Send a copy of the form to your employer (via email, fax, or hand delivery) and get proof of service.
Submit to CCMA: Email or hand-deliver the form and proof of service to your nearest CCMA regional office.

The CCMA Process

Stage 1: Conciliation

A CCMA commissioner will attempt to help you and your employer reach a voluntary settlement. This is informal, and legal representation is generally not allowed.

Outcome: If you settle, both parties sign a settlement agreement. If conciliation fails, you proceed to arbitration.

Stage 2: Arbitration

If conciliation is unsuccessful, the employee can choose to refer the matter to:

The CCMA for arbitration (more common).
The Labour Court for adjudication (if you earn above the earnings threshold or prefer a court setting).

For sexual harassment cases, employees have this choice regardless of earnings.

Arbitration Hearing:

Both parties can bring witnesses and evidence.
Legal representation is allowed.
The commissioner cross-examines witnesses and reviews evidence.
The commissioner issues a binding arbitration award.

What Can You Claim?

If your claim is successful, the CCMA can order:

Compensation: For emotional distress, humiliation, and financial loss (usually capped at 12-24 months' salary).
Reinstatement: If you were unfairly dismissed after reporting harassment.
Disciplinary Action: The employer must take action against the harasser.
Changes to Policy: The employer may be required to implement proper harassment policies.

Reporting to the Police

If the harassment involves criminal conduct (assault, sexual assault, stalking, threats), you can also open a criminal case at your nearest police station.

You can pursue both a CCMA claim and a criminal case simultaneously.

Protection from Retaliation

It is illegal for an employer to retaliate against you for reporting harassment. Retaliation includes:

Demotion or dismissal.
Salary reduction.
Exclusion from meetings or opportunities.
Creating a hostile work environment.

If you experience retaliation, you can file a separate unfair dismissal or discrimination claim with the CCMA.

Frequently Asked Questions

Can I be fired for reporting harassment?

No. Dismissing someone for reporting harassment is automatically unfair and you can claim at the CCMA.

What if my boss is the harasser?

Report directly to HR, a senior manager, or the company owner. If nothing is done, go to the CCMA.

Do I need a lawyer for the CCMA?

Not for conciliation. For arbitration, you can represent yourself but having a lawyer is recommended, especially for complex cases.

What if I don't have proof?

Your testimony is evidence. Witness statements can also support your case. The CCMA evaluates all evidence holistically.

How long does the CCMA process take?

Conciliation is usually scheduled within 30 days. Arbitration can take 2-6 months depending on the case's complexity.

Can I remain anonymous?

No. Formal complaints and CCMA referrals require your identity. However, your privacy should be respected during investigations.

What if the harassment happened years ago?

You have 6 months from the last incident. If it's older, you can apply for late condonation, but success depends on your reasons for the delay.

Can men be sexually harassed?

Yes. Sexual harassment laws protect all genders equally.

What is the difference between harassment and a consensual relationship?

The key is consent. If the conduct is welcome and mutual, it's not harassment. However, power imbalances (like manager-subordinate relationships) can complicate consent.

What if I witness harassment but I'm not the victim?

You can report it to HR or management. While you can't file a CCMA claim on behalf of someone else, your witness statement can support the victim's case.

Key Takeaways

Sexual harassment includes unwelcome sexual conduct that violates dignity or creates a hostile environment.
2024 updates include psychological abuse and cyberbullying as forms of harassment.
Employers must have policies, conduct training, and investigate complaints promptly.
Document all incidents with dates, times, and evidence.
Report internally first (HR or management).
If no action is taken, refer to the CCMA within 6 months using Form 7.11.
The CCMA process includes conciliation and arbitration.
You can claim compensation, reinstatement, and disciplinary action against the harasser.
Retaliation is illegal and you can file additional claims if it occurs.
Legal representation is allowed at arbitration and recommended for complex cases.