Sexual Harassment Policy

1. Definitions

Allegation: An assertion of facts that one intends to prove through an investigation procedure, hearing or trial.

Alleged perpetrator: A person alleged to have committed an act of sexual harassment.

Beneficiaries: Groups and individuals with whom Sonke works, to whom Sonke provides assistance, and for whose rights Sonke advocates. These include but are not limited to participants in workshops, conferences, protests and meetings, CAT members, and volunteers.

Child: Any individual under the age of 18, irrespective of local country definitions of when a child reaches adulthood.

Code of conduct: A set of standards about behaviour that staff of Sonke are obliged to adhere to.

Complaint: Specific grievance of anyone who has been negatively affected by the actions of an individual, group or organisation.

Complainant: The person making the allegation of conduct that violates the provisions of this policy, including the alleged victim or survivor of the sexual harassment and abuse or another person who becomes aware of the wrongdoing.

Confidentiality: An ethical principle that restricts access to and dissemination of information. In investigations on sexual harassment, abuse, fraud and corruption, it requires that information is available only to a limited number of authorised people for the purposes of concluding the investigation. Confidentiality helps create an environment in which witnesses are more willing to recount their versions of events and builds trust in the system and in the organisation.

Consent: When someone unambiguously and voluntarily agrees to do something without coercion, and fully understanding the consequences of their decision.

• In any instance of sexual activity, it is the responsibility of both parties to ascertain whether the other person consents freely and without coercion;
• Consent to one type or instance of sexual activity does not imply consent to other types or instances of sexual activity;
• Silence does not imply consent;
• Consent should be explicit and not implied and must take into account power dynamics;
• Relenting and submitting do not equate consent;
• A previous or present consensual sexual or other relationship between the parties does not imply subsequent or future consent;
• Consent is not implicit in a person’s manner of dress;
• Accepting a social invitation is not consent nor does it imply consent;
• Consent will not be effective when it is obtained from a person whose capacity to consent is diminished because they are asleep, unconscious or in an altered state of consciousness resulting from the use of alcohol, medicines or drugs to the extent that it adversely affects their judgement;

Coercion: The use of force or threats to persuade someone to do something they are unwilling to do.

Investigator: External and independent person skilled in sexual harassment cases shall be appointed by Sonke to investigate allegations of sexual harassment.

Chairperson of a disciplinary hearing: External independent person who makes a recommendation after hearing evidence.

Marginalisation: The process of according less importance to something or someone moved away from the inner workings of the group. Excluding a minority, subgroup, or undesirables by ignoring their needs, desires, and expectations.

Rape: Non-consensual penetration, however slight, of the vagina, anus or mouth by a penis or any other body part or object.

Sexual abuse: Actual or threatened sexual violence, including but not limited to rape, sexual assault and sexual harassment.

Sexual assault: When person A sexually violates person B without person B’s consent.

Sexual bribery: A form of quid pro quo harassment in which a sexual relationship with a manager and/or superior is made an explicit or implied condition for obtaining/retaining employment or its benefits.

Sexual harassment: Sexual harassment is bullying or coercion of a sexual nature or the unwelcome or inappropriate promise of rewards in exchange for sexual favours. It is the unwanted sexual advances or remarks, including both verbal and non-verbal conduct. Examples include but are not limited to non-consensual physical touching, lewd or obscene sexual jokes, whistling, rude gestures, questioning someone about their sex life or sexual orientation or their gender identity, requests for sex, promising someone rewards in exchange for sexual favours, staring at someone’s body, commenting on someone’s state of dress or gender-based slurs.

Survivor or victim: A person who has experienced sexual harassment. The terms ‘victim’ and ‘survivor’ are sometimes used interchangeably; ‘victim’ is used most often in the legal and medical sectors, while ‘survivor’ is a term generally preferred in the psychological and social support sectors.

Sexual Harassment Support Team (SHST) Member: A staff member is appointed as the SHST member in each office to support victims of sexual harassment.

Whistle blowing: is the act of informing the authorities and/or senior management; that someone is doing something that is immoral/unwanted and/ or illegal.

2. Introduction

Sexual harassment and sexual violence is a form of unfair discrimination on the basis of sex and/or gender and/or sexual orientation which infringes on the rights of the complainant and constitutes a barrier to equity in the workplace. It is a violation of one’s fundamental human rights and constitutes a violation of the right to equality, human dignity, privacy, security of person and fair labour practice. It undermines the basic integrity of the employment relationship and is a direct violation of Sonke’s values. Sonke takes a zero-tolerance approach against sexual harassment in the workplace and it will not be permitted or condoned. Against this backdrop, Sonke commits to providing a safe working environment for all its employees, interns, fellows, consultants, community action team (‘CAT’) members, volunteers and job applicants so that all can go about their duties and activities free from sexual harassment and sexual violence. Sonke further commits to providing a safe environment for all who are exposed to and affected by its activities. Sonke’s employees, interns, fellows, consultants, board members, CAT members and volunteers are also expected to abide by the organisation’s Code of Good Conduct and all its policies. A non-employee who is a victim of sexual harassment by an employee may lodge a grievance with the organisation.

3. Purpose of the policy

The purpose of this policy is to prevent sexual harassment and to clearly set out the procedures to be followed when sexual harassment is witnessed or occurs. Employees, interns, fellows, consultants, CAT members, volunteers, and applicants for employment who have been subjected to sexual harassment have a right to lodge a grievance, and to expect that the organisation will take appropriate and decisive action. The organisation is committed to creating a safe environment for staff members, interns, fellows, consultants, CAT members, volunteers and job applicant. The organisation commits itself to addressing as a matter of urgency all cases of alleged sexual harassment and to ensure that fair procedures are followed throughout the process within clear pre-determined time frames of no longer than 30 days.

The purpose of this policy is therefore:

3.1. To create a safe, zero-tolerance work environment free of all forms of sexual harassment;

3.2. To establish a common understanding of what constitutes sexual harassment;

3.3. To ensure that all staff, interns, fellows, consultants, CAT members, volunteers and job applicants receive appropriate information about sexual harassment and other forms of sexual violence and the procedures to be followed if sexual harassment, sexual assault or rape occurs;

3.4. To ensure that any staff member, intern, fellow, consultant, CAT member, volunteer or job applicant who experiences sexual harassment or any other form of sexual violence is offered appropriate support, such as counselling and legal support;

3.5. To establish clear lines of accountability for the implementation and management of this policy;

3.6. Sexual harassment in the workplace will not be permitted or condoned; and

3.7. Complainants in sexual harassment matters have the right to follow the procedures in the policy and appropriate action shall be taken by the organisation.

4. Organisational Scope

This policy applies to employees at all levels of the organisation, including applicants for employment, managers, directors, board members, interns, fellows, volunteers, consultants and CAT members. All cases of sexual harassment shall be overseen by the Human Resources Unit Manager and an investigator with expertise in gender-based violence and sexual harassment to be appointed annually by the Board. Should any of the individuals listed below be the alleged perpetrator the Chairperson of the Board shall be informed immediately and shall take steps on who shall lead on the matter.

Role of Complainant: A person who makes a formal complaint that they have been sexually harassed or witnessed someone being sexually harassed. The complainant may choose not to talk to their direct line manager but to the head of the Unit or the Co-Executive Directors.

Role of Line Manager: To be kept informed of the charges and investigation.

Role of Unit Manager: To be kept informed of the charges and investigation.

Role of HR Unit Manager: The Human Resources Unit Manager will be responsible for coordinating investigation processes and hearings, seeking legal advice where necessary, keeping the Senior Management Team (SMT) and/or Co-Executive Director/s informed of allegations, progress and outcomes. They will ensure that all actions are in compliance with the organisational policies, the Sexual Offences Act and the South African Constitution.

Role of Investigator: The investigator will be appointed by the SMT on an annual basis and will be responsible for investigating the charges, participate in hearings, provide the HR Unit Manager with their legal expertise and advice, and provide the HR Unit Manager with their findings.

Role of the Chairperson of the hearing: To hear the case presented and present a finding.

Role of Co-Executive Directors: To be informed of all allegations and to receive the investigator and chairperson’s report.

Role of the SMT: Initiate investigations, proceed with hearings, accept/not accept resignations with immediate effect and settle matters at the CCMA.

Role of HR Board Sub-Committees: To be informed of all allegations, receive the investigator and chairperson’s report and provide non-binding opinions as sought by the Co-Executive Directors.

Sexual Harassment Team Member: Two staff members shall be appointed as SHTM in each office to support victims of sexual harassment. The SHTM should anonymously record the nature of the allegation, liaise with the investigator and/or HR on behalf of the complaint and be present at any stage during the formal and informal processes if the complainant request support.

5. Core principles

Sonke has an obligation and duty to care for and provide a safe working environment (at the office or when away on work related matters) to its employees, job applicants, interns, fellows, consultants, CAT members and volunteers, to ensure that everyone is aware of their rights, and to ensure that Sonke staff, interns, fellows, consultants, CAT members and volunteers never perpetrate sexual harassment while carrying out their work, whether at their offices, conferences, meetings or while doing community work, and that the highest standards of behaviour are observed and practiced all the time.

To prevent sexual harassment, exploitation and abuse, Sonke shall adhere to the following principles:

5.1. Sexual harassment, exploitation and abuse by employees constitute acts of gross misconduct and are therefore grounds for termination of employment;

5.2. Sexual activity with children (persons under the age of 18) is prohibited regardless of the age of majority or age of consent (16 years), as per the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. Mistaken belief regarding the age of a child is not a defence.

Sonke has an obligation to report any sexual activity with children to the police, Section 54 of the Sexual Offences Act stipulates that “A person who has knowledge that a sexual offence has been committed against a child must report such knowledge immediately to a police official.”

Section 110 of the Children’s Act also requires that sexual abuse of a minor be reported and says that this must be done in one of three ways, viz. (1)to the Department of Social Development, (2) the police or (3) to a designated child protection organisation.

5.3. Exchange of money, employment, goods or services for sex, including favours, is prohibited. This includes exchange of assistance that is ordinarily due to Sonke’s beneficiaries;

5.4. Sexual relationships between employees and beneficiaries which are based on inherently unequal power dynamics are discouraged because such relationships undermine the credibility and integrity of our work. Staff who are in such relationships must declare it to their line managers and/or HR Unit Manager as soon as is reasonably possible;

5.5. Where an employee develops concerns or suspicions regarding sexual abuse by a fellow worker, they are encouraged to report such concerns to their line manager, a member of SMT and/or HR Unit Manager immediately;

5.6. Where an employee observes worrying behaviour by a staff member, fellow, volunteer, intern, CAT member or consultant outside of working hours, they should inform their direct line manager or the HR Unit Manager;

5.7. Sonke staff, interns, fellows, consultants, CAT members and volunteers are obligated to create and maintain an environment which prevents sexual exploitation and abuse and promotes the implementation of this policy. All staff, interns, fellows, consultants, CAT members and volunteers are responsible to support systems which maintain this environment. Sonke management is responsible for the development of systems to prevent sexual harassment and abuse.

6. Behaviour constituting sexual harassment

Sexual harassment is any unwanted conduct of a sexual nature which has the purpose or effect of violating someone’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. It can occur both inside and outside of work premises, and includes, but is not limited to the types of behaviours described in Appendix A.

7. Procedures to follow for complainants

Complainants can choose to deal with the matter either formally or informally. Upon reporting an incident to the SHST Member, a line manager, SMT member or the HR Unit Manager, the complainant shall be informed of their rights, all aspects of confidentiality (see 4.3 above and section 9 below), anonymity, and the options available to them regarding the steps involved and possible outcomes of both informal versus formal procedures. Complainants shall not be subjected to any undue pressure to bring a formal or informal complaint. The HR Unit Manager shall only discuss the case with, and make recommendations to, the line manager, the relevant programme director, and the Co-Executive Director. Should the complainant decide not to pursue the case, the complainant shall inform the HR Unit Manager in writing that they do not wish to pursue the case further and the HR Unit Manager will document the discussion and keep it on file. The complainant is permitted to ask a staff member to sit next to the complainant while giving evidence and shall be warned to maintain confidentiality.

The Co-Executive Directors may decide that the information of the case is serious enough to warrant taking the matter further. In this case the Co-Executive Directors shall discuss this matter with the HR Board Sub-Committee and the Committee shall make a decision on the matter. The complainant will be informed of the decision and can decide if they would like to participate in the case or not. Should the accused choose to resign prior to the disciplinary hearing taking place, Sonke reserves the right to proceed with the hearing in the accused’s absence.

If a complaint is lodged against the Co-Executive Director/s the HR Unit Manager shall inform the HR Board Sub-committee and the chair of the board within 24 hours of receiving the allegation.

If an employee has reason to believe that another employee or any other person associated with Sonke has engaged in any action that violates a law or this policy, the employee should report such information to the following email address and SMS number that is also on Sonke’s website:

• Toll free no: 080 033 3059
• Email address: sonke@whistleblowing.co.za
• SMS no: 33490
• Online: www.whistleblowing.co.za

7.1. The informal procedure: Discussions between both parties

A complainant of sexual harassment may choose to follow either of the following informal procedures:

• A complainant or another appropriate person explains to the perpetrator that the conduct in question is not welcome, that it offends the complainant, makes him or her feel uncomfortable and that it interferes with his or her work; or
• An appropriate person approaches the perpetrator, without revealing the identity of the complainant, and explains to the perpetrator that certain forms of conduct constitute sexual harassment, are offensive and unwelcome, make employees feel uncomfortable, and interferes with their work.

7.1.1. The complainant shall discuss the matter with the SHST member in their respective offices;

7.1.2. The SHST member shall inform the Investigator, the HR Unit Manager and/or a member of management of the matter. If the matter is reported to a manager, the manager must as soon as possible report the incident to the HR Unit Manager. Although it may be advisable to report an incident as soon as possible, the complainant may do so whenever they are comfortable. A delay in reporting an incident shall not prejudice the complainant in any way, and should not detract from the validity or seriousness of their complaint, no matter the reason for the delay;

7.1.3. Should the allegation of sexual harassment involve the Co-Executive Director/s the chairperson of the Board must be informed immediately and/or within 24 hours.

The following shall take place in consultation with the Co-Executive Directors:

7.1.4. The SHST Member, the HR Unit Manager, investigator, the line manager of the alleged perpetrator and the alleged perpetrator shall meet privately, and the alleged perpetrator shall be informed of the details of the complaint;

7.1.5. The alleged perpetrator shall be assured that their identity will remain confidential as far as is reasonably possible until the matter is resolved;

7.1.6. The alleged perpetrator shall be given an opportunity to state their case; be informed that the complainant’s request is to have an informal settlement, and that the possible consequences if proven guilty of sexual harassment shall result in a formal disciplinary hearing and possible warning or termination of employment;

7.1.7. The alleged perpetrator may not approach the complainant or communicate with the complainant regarding the complaint in any way, and the HR Manager must inform them of this;

7.1.8. The SHST Member, the HR Unit Manager and investigator shall meet again with the complainant, advise them of the alleged perpetrator’s response and, if the complainant is satisfied, invite both parties to meet with the HR Unit Manager and the investigator to resolve and settle the matter without the need for a formal disciplinary hearing. If the complainant and alleged perpetrator choose to resolve the matter without proceeding to formal disciplinary action, the SMT may request that the alleged perpetrator receives training and sensitisation on avoiding and preventing sexual harassment, is placed under supervision, or any other appropriate remedial activity to be determined by the parties in consultation with the HR Unit Manager and the investigator. The alleged perpetrator shall abide by the recommendations made by the SMT. If the complainant is not satisfied with the outcome of the informal procedure, they may elect to lay a formal complaint;

7.1.9. These proceedings shall be minuted and copies of the minutes placed in the files of the complainant and alleged perpetrator. These minutes may be referred to should new allegations against the alleged perpetrator arise in the future;

7.1.10. The HR Unit Manager, together with the complainant, will assess what support and assistance the complainant may require thereafter;

7.1.11. Sonke reserves the right to proceed with disciplinary action even if the affected employee withdraws the complaint. In such an instance, there will be no obligation on the complainant to participate in these processes. This will happen only if the organisation views the alleged harassment to be serious enough to represent a threat to others, if the alleged perpetrator has already received a warning for similar misconduct, or if it is deemed to threaten the organisation’s values. The decision to proceed will be taken in consultation with the Co-Executive Director/s and a member of the HR Board Sub-committee.

7.2. The formal procedure: Proceeding to Investigation and Disciplinary Hearing

If the matter is not resolved through informal procedures, or, if the complainant elects to initiate formal processes instead of an informal procedure, the following procedures shall follow:

7.2.1. If the complainant wants to proceed with formal action, then the HR Unit Manager shall: –

7.2.1.1. Inform the investigator, direct line managers and the Co-Executive Director/s within 24 hours;

7.2.1.2. Immediately, within a maximum of 24 hours, consider whether the alleged perpetrator should be suspended while conducting investigations. The following should be considered when deciding whether the alleged perpetrator should be suspended: 1) The employer has a justifiable reason to believe that the employee has engaged in serious misconduct; 2) there is some justifiable reason to deny the employee access to the workplace based on the integrity of any pending investigation into the alleged misconduct or some other relevant factor that would place the investigation or the interests of affected parties in jeopardy; and, 3) that the employee is given the opportunity to state why they should not be suspended before the employer makes a final decision to suspend the employee. If the decision is made to suspend the alleged perpetrator, the alleged perpetrator shall receive notice of their suspension in writing. The suspension letter shall include that they are not allowed to contact the complainant and they are not allowed to enter the organisation’s premises. Staff shall be informed that the alleged perpetrator has been suspended pending the outcome of an investigation and questions may be directed to the HR Unit Manager;

7.2.1.3. Conduct an investigation and appoint an independent external party (‘the Investigator’) to conduct the investigation in a sensitive manner by interviewing witnesses and taking written statements where possible. Such an investigation shall be conducted in line with Sonke’s Disciplinary Policy;

7.2.1.4. Following the investigation, the Investigator shall file a report with the HR Unit Manager, line manager and Co-Executive Directors. Should the investigation show the probability of sexual harassment, normal disciplinary procedures will follow in respect of a formal disciplinary hearing as per Sonke’s Disciplinary Policy.

The formal procedure may differ in three important respects from the informal process, viz.;

7.2.2. if the complainant wishes, the formal disciplinary hearing may take place in camera, i.e. in private, only the persons directly involved, shall attend;

7.2.3. the names of the parties shall remain confidential as far as is reasonably possible; &

7.2.4. Sonke’s disciplinary policy shall apply, as well as the normal rules regarding appeals;

7.2.5. As in 7.1.9 above, Sonke reserves the right to proceed with disciplinary action, including investigation, even if the affected employee elects to withdraw the complaint or the alleged perpetrator resigns. In such an instance, there will be no obligation on the complainant to participate in these processes. This will happen if the organisation views the alleged harassment to be serious enough to represent a threat to others or if it is deemed to threaten the organisation’s values. The decision to proceed will be taken in consultation with the Co-Executive Director/s and a member/s of the Board HR Sub-committee.

7.2.6. Sonke may decide to agree to a settlement with the alleged perpetrator. In this instance Sonke shall consider the seriousness of the harassment (e.g. rape or children involved) and the prospects of the perpetrator repeating the behaviour. A zero-tolerance approach requires that serious cases are never settled. In less serious cases Sonke may still decide not to settle. Sonke may refuse to give a reference (only a certificate of service) and reserve its right to report the settlement as being no admission on Sonke’s part that the dismissal was not fair.

7.2.7. If the accused chooses to resign prior to the disciplinary hearing taking place, Sonke reserves the right not to accept the resignation and to proceed with the hearing. In the event that the accused resigns with immediate effect, the organisation may proceed with the matter in the accused’s absence. The decision to proceed must be made within 30 days of the resignation.

8. Investigation

When an offence is alleged to have been committed, the Investigator shall:

• Conduct the investigation and collect evidence;
• Write up the investigation report and present to the H.R. Unit Manager & Co-Executive Director/s;
• Given the seriousness of the matter the Co-Executive Director/s shall decide on an appropriate course of action and where very serious misconduct appears to be involved, the employee may be suspended on full pay, pending the convening of a disciplinary. Employees could also be suspended in the event there is concern of interfering with the investigation
• The employee shall be informed in writing of the suspension by their line manager with additional signatures from either the unit manager, directors, co-executive director/s or the H.R. Unit Manager.

9. Procedure to follow when convening a disciplinary hearing

A disciplinary hearing shall be convened in cases of serious disciplinary infringement and must be held when the dismissal of an employee is under consideration. However, for less serious offences warnings and corrective action shall be considered.

Step 1: The H.R. Unit Manager in consultation with the line manager (unit manager, programme directors and/or co-executive director/s) will formulate the charge/charges against the employee and prepare the notification to attend a disciplinary hearing. Notice will be served 3 days prior to the hearing, stating very clearly what the charges are.

Step 2: The employee shall be informed of the following:

• They may be represented by a fellow employee;
• Should the employee require an interpreter the organisation will make one available;
• The employee may present evidence, submit documents, call witnesses to the hearing and question the organisations witnesses during cross examination.

Step 3: The employee must acknowledge receipt of the disciplinary notice in writing.

With regards to convening a disciplinary hearing for the Co-Executive Director/s the following process shall be followed:

The chairperson of the HR Board Sub-Committee shall formulate the charges;

• Notice will be served 3 days prior to the hearing, steps 2 and 3 above shall be adhered to; and
• An independent chairperson shall be engaged.

10. After the disciplinary hearing

• Within 7 days of the disciplinary hearing the employee shall be informed in writing of the outcome;
• The chairperson shall forward the disciplinary report that will include recommendations to the H.R. Unit Manager;
• The co-executive directors, H.R. Unit Manager, programme directors and direct line manager shall discuss the chairpersons recommendations and the co-executive directors shall make a decision on whether to accept/not accept the recommendations of the chairperson;
• In the case of the co-executive director/s, the chairperson of the disciplinary hearing will forward the recommendations to the chairperson of the Board HR sub-committee;
• The co-executive directors shall at all times be kept informed of disciplinary proceedings instituted against any employee in the organisation;
• The H.R. Unit Manager shall ensure that completed records of the proceedings are filed in the employee’s personnel file.

11. Appeal process

11.1. Appeal against warnings

The employee or their representative shall be entitled to have access to all the documents and records pertaining to the hearing including records of previous warnings.

The co-executive director/s in consultation with the H.R. Unit Manager shall consider the appeal within 5 working days of the lodging of the appeal. In the event of an appeal against a first, second or final written warning, the appeal shall take the form of a review of the records of the disciplinary hearing, and consideration shall be given to the reasons for the appeal.

11.2. Appeal against dismissal

In the event of an appeal against a dismissal, an Appeal Hearing shall be considered by the H.R. Unit Manager and the co-executive director/s. Should it be found that there is merit in the submission of additional information then an appeal hearing shall be convened by a new chairperson. In respect of such an appeal, records of the disciplinary hearing shall be submitted to the chairperson of the appeal hearing. The chairperson should preferably be an external person who has no knowledge of the disciplinary matter.

The employee and the organisation shall be allowed to only present evidence that was not presented at the first disciplinary hearing. Should the employee decide not to appeal to the next level of management, they may make a referral to the CCMA if they so desire.

In the event of an appeal against dismissal by any of the co-executive directors, an appeal hearing shall be considered by the chairperson of the Board. Should it be found that there is merit in the submission of additional information then an appeal hearing shall be convened. The chairperson shall be an external person who has no knowledge of the disciplinary matter. Only new evidence shall be presented to the appeal hearing.

11.3. Procedure to follow when appealing against warnings or dismissal

• The employee may appeal to the co-executive director/s, against written warnings or the outcome of the disciplinary hearing;
• An appeal may be lodged within 3 working days of having received a written warning or notification of the outcome of a disciplinary hearing;
• The co-executive director/s; in consultation with the H.R. Unit manager may decide to convene a new hearing if they think that the new evidence may change the outcome, or confirm the decision of the original hearing;
• The employee shall be informed of the date and venue for the appeal hearing;
• A new chairperson (preferably external) shall be engaged to chair the appeal hearing and make a recommendation after hearing the new evidence;
• The decision of the co-executive director/s after consideration of the recommendations of the appeal hearing is final;
• The employee lodging the appeal shall be notified within 7 working days of the outcome of the appeal hearing.

11. 4. Valid reasons for appeal

Employees may appeal based on the following:

• Procedural fairness: when the organisation has failed to give the employee adequate notice; presented a charge sheet with incoherent charges and/or not informing the employee of their rights;
• Substantive fairness: when the organisation did not take into account the seriousness of the rule/s that were contravened and/or performance management;
• Whether the organisation applied this rule consistently;
• A very harsh decision; and
• New evidence has become available.

11.5. Management of the outcome of the disciplinary hearing

Factors to be considered

The action to be taken in disciplining an employee will depend not only on the seriousness of the offence, but also on the disciplinary record of the employee. Certain factors might either aggravate or mitigate an offence.

Warning and dismissal letters

All warnings and dismissal letters shall be signed by the H.R. Unit Manager and the immediate line manager, after considering the recommendations of the chairperson of the disciplinary hearing.

12. Victimisation

It is a disciplinary offence to victimise or retaliate against an employee or witnesses who in good faith lodges a grievance of sexual harassment, or to pressurise a complainant to drop a complaint of sexual harassment. The organisation encourages employees who have any knowledge of employees being victimised to inform the Co-Executive Directors. Sonke shall do all it can to prevent any retaliation from taking place and to ensure anonymity and no pressure shall be placed on victims to report cases of sexual harassment.

13. Confidentiality

Allegations of sexual harassment, sexual assault or rape are distressing to the complainant as well as to the person accused of the misconduct. For this reason, all complaints of sexual harassment, sexual assault and rape shall be investigated and dealt with in a manner that seeks to ensure that the identities of the persons involved are kept confidential. Sonke maintains the right to inform staff of the outcomes of the disciplinary hearing, to publicly disclose the name of the perpetrator, when found guilty of the offence, and to inform prospective employers when asked for a reference.

13.1. Management and employees shall ensure that grievances related to sexual harassment are investigated, handled sensitively in a manner that ensures that the identities of the persons involved are kept confidential as far as is reasonably possible.

13.2. In cases of sexual harassment, management, employees and the parties concerned must ensure confidentiality as far as possible even when the matter proceeds to a disciplinary hearing. Only appropriate members of management, the HR Manager, the aggrieved person, alleged perpetrator, witnesses, investigator and interpreter if required, shall be present at the disciplinary hearing.

13.3. The organisation is required to disclose to either party such information that may be necessary to enable the parties to prepare for internal or external civil or criminal proceedings.

13.4. Sonke will inform all staff of the outcome of a disciplinary proceeding which results in a guilty charge. This will be done within 1 week of Sonke receiving the information on the outcome of the hearing. Sonke shall provide information to the public on all cases of sexual harassment via its web page.

13.5. Information to be shared with staff and/or publicly as follows:

• After suspension before dismissal: Sonke shall inform staff that the person is suspended facing a disciplinary enquiry into misconduct. No public announcements will be made.
• After the disciplinary hearing and outcome where staff member was found guilty: Sonke shall inform staff that the person was dismissed for serious misconduct involving sexual harassment. If anyone phones for a reference they must be referred to HR who can inform the inquirer that the employee was dismissed for serious misconduct involving sexual harassment.
• Once the period to challenge the dismissal has expired and/or the employee is unsuccessful at the CCMA, Sonke shall report that the person was dismissed for misconduct involving sexual harassment and has not challenged it, or the dismissal has been upheld.
• Sonke shall report internally and publicly on an annual basis via its web page and annual report the statistics on sexual harassment namely the number of cases, the nature of the sexual harassment and the outcome.

14. Employee Wellness Programme

A complainant of sexual harassment may require advice and assistance, including counselling and the alleged perpetrator of sexual harassment, who has been found innocent or unjustly accused, will be offered assistance in terms of the organisations Employee Wellness Programme, and shall be granted additional leave or trauma counselling where such experiences have impacted on the employee’s psychological wellbeing.

Sonke shall designate a person outside of line management who complainants may approach for confidential advice and/or counselling.

Such person:

• Could be a person employed by the employer to perform such a function, a trade union representative, a co-employee or a professionally engage person to perform such activity;
• Should have the appropriate skills and experience, including counselling and labour relations skills; and
• Should be properly trained and given adequate resources.

15. Criminal and civil charges

Employees lodging a complaint have the right to press separate criminal and/or civil charges against alleged perpetrators. Sonke is legally obligated to report the matter to the police, Department of Social Development or a designated child protection organisation (see attached appendix) where the alleged sexual harassment was perpetrated against a minor or a person with mental disabilities.

16. Dispute resolution

Should a complaint of alleged sexual harassment not be satisfactorily resolved by the internal procedures set out above within 30 days of lodging of a complaint, either party may within 30 days of the dispute having arisen, refer the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA) for conciliation. Should the dispute remain unresolved, either party may refer the dispute to the Labour Court.

17. Additional sick leave

Where an employee’s sick leave entitlement has been exhausted, Sonke shall grant additional sick leave in cases of serious sexual harassment or trauma.

18. Preventing sexual harassment

Sonke believes that it is important to have a clearly defined and well thought through plan to prevent sexual harassment and commits to implementing the following steps to create a workplace that prevents and deters sexual harassment:

18.1. Sonke shall appoint an external specialist to conduct annual training on sexual harassment for all staff and, in line with international best practice, include an overview of the law, a review of Sonke’s policies, code of conduct and training, how to intervene to prevent sexual harassment, how to contribute to a culture in which all staff are treated as equals and employees treat one another with respect and unambiguously reject sexual harassment, holding each other accountable to high standards within the workplace;

18.2. Sonke shall provide regular annual training for managers on how to address and prevent sexual harassment. All new staff should receive training on this as part of their orientation to management roles, responsibilities and expectations;

18.3. Include a question on adherence to Sonke values, including sexual harassment, commitment to gender equality and non-discrimination in 360 performance reviews and in the annual staff satisfaction survey;

18.4. Include a question in exit interviews on staff experience with sexual harassment at Sonke;

18.5. Maintain a whistle-blowing email address and SMS number on our web page where any staff and non-staff members can report any incidences of concern;

18.6. Ensure that all Sonke offices have posters and other materials visible on the walls that convey our commitment to preventing sexual harassment and promoting equality;

18.7. All staff, interns, fellows, consultants, CAT members and volunteers will be expected to sign The Code of Good Conduct to confirm that they have read and will abide by the Sexual Harassment policy; and

18.8. Statistics on the nature of incidents and how it was processed shall be kept by all role players, viz. SHST, the investigator, managers and HR and should be reported to the SMT regularly.

19. Consensual relationships

Employees who are in consensual relationships are encouraged to declare their relationships to HR to avoid corridor gossip.

20. Conclusion

Employees are expected to respect one another’s integrity, dignity, privacy and their right to equity in the workplace at all times and to note that the organisation views sexual harassment in any form extremely seriously and disciplinary action including summary dismissal may result after following due process.

Appendix A

Sexual harassment is any unwanted conduct of a sexual nature which has the purpose or effect of violating someone’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. It can occur both inside and outside of work premises, and includes, but is not limited to the types of behaviours described in Appendix A. Complainants are encouraged to keep records of the date, time, and place and details of witnesses to the alleged sexual harassment

1. Verbal behaviour of a sexual nature, such as

1.1. Unwelcome sexual hints, insinuations and suggestions;

1.2. Unwelcome sexual advances;

1.3. Unwelcome comments with sexual overtones;

1.4. Unwelcome sex related jokes or insults;

1.5. Unwelcome comments about a person’s body made in their presence or directed towards them;

1.6. Making comments to other colleagues about a person’s body even if in their absence;

1.7. Unwelcome and inappropriate enquiries about a person’s sex life;

1.8. Unwelcome whistling, cat-calling or heckling directed at a person or groups of persons;

1.9. Unwelcome jokes that cause awkwardness or embarrassment;

1.10. Comments about a person’s sexual habits;

1.11. Verbal threats or abuse of a sexual nature; and

1.12. Unwelcome telephone calls with sexual overtones;

1.13. Unwelcome comments about a person’s state of dress;

2. Gestures and other non-verbal behaviour

2.1. Unwelcome gestures;

2.2. Indecent exposure – the act of intentionally showing one’s sexual organs;

2.3. The unwelcome display of sexually explicit/undesirable pictures and objects;

2.4. Persistent and unwelcome flirting;

2.5. Stares/looks that make an individual feel uncomfortable;

2.6. Shaking someone’s hand and scratching the palm of their hand;

2.7. Looking at someone and licking your lip in a sexual manner.

3. Visual sexual harassment

3.1. A public display of pornographic or other offensive, derogatory and/or sexually explicit pictures, photographs, cartoons, drawings, symbols and other material;

3.2. Showing of pornographic or sexually explicit movies or slides;

3.3. Indecent exposure of private parts in view of others; and

3.4. Displaying/sourcing offensive material/jokes on computers and/or emailing and /or communicating via all forms of social media such material to other employees.

4. Physical behaviour

4.1. All unwanted physical contact, ranging from whistling, to touching, sexual assault and rape; and

4.2. Attempted or actual kissing, touching or fondling.

5. Harassment on a prohibited ground

5.1. The grounds of discrimination to establish sexual harassment are sex, gender and sexual orientation.

5.2. Same sex harassment can amount to discrimination on the basis of sex, gender and sexual orientation.

6. Unwelcome conduct

6.1. There are different ways in which an employee may indicate that sexual conduct is unwelcome, including non-verbal conduct such as walking away or not responding to the perpetrator.

6.2. Previous consensual participation in sexual conduct does not necessarily mean that the conduct continues to be welcome.

6.3. Where a complainant has difficulty in indicating to the perpetrator that the conduct is unwelcome, the complainant may see the assistance and intervention of another person such as a co-worker, superior, counsellor, HR official, family member or friend.

7. Psychological sexual behaviour

7.1. Repeated unwanted social invitations for dinner, drinks, outings, movies, etc;

7.2. Offering or expecting sexual favours, implicitly or explicitly;

7.2.1. Requiring/requesting either explicitly or implicitly that a subordinate wears revealing and/or suggestive clothing that make them feel uncomfortable; and

7.2.2. Giving an employee gifts which makes them feel uncomfortable or to elicit sexual favours.

8. Quid pro quo harassment

Quid pro quo harassment is when a supervisor, line manager, member of management or co-employee offers or hints that they will influence the process of employment, promotion, training, discipline, dismissal, salary increase or other benefits of an employee, job applicant, volunteer, intern, or CAT member, in exchange for sexual favours.

9. Sexual favouritism

Sexual favouritism exists where a person who is in a position of authority rewards only those who respond to their sexual advances, whilst other deserving employees who do not submit themselves to any sexual advances are denied promotions or salary adjustments.

Appendix B

Sexual Harassment includes a range of behaviour from verbal and non-verbal to assault and rape. Sexual assault and sexual violence are the more extreme forms of sexual harassment. This policy covers all cases of sexual harassment.

Definition of sexual harassment in terms of the Code of Good Practice on Sexual Harassment:

(1) Sexual harassment is unwanted conduct of a sexual nature. The unwanted nature of sexual harassment distinguishes it from behaviour that is welcome and mutual.

(2) Sexual attention becomes sexual harassment if:

1. The behaviour is persisted in, although a single incident of harassment can constitute sexual harassment; and/or
2. The recipient has made it clear that the behaviour is considered offensive; and/or
3. The perpetrator should have known that the behaviour is regarded as unacceptable.

As per the Sexual Offences Act:

‘Sexual Violation’ includes any act which causes:

(a) direct or indirect contact between the:

(i) genital organs or anus of one person or, in the case of a female, her breasts, and any part of the body of another person or an animal, or any object, including any object resembling or representing the genital organs or anus of a person or an animal;

(ii) mouth of one person and-

(aa) the genital organs or anus of another person or, in the case of a female, her breasts;

(bb) the mouth of another person;

(cc) any other part of the body of another person, other than the genital organs or anus of that person or, in the case of a female, her breasts, which could – (aaa) be used in an act of sexual penetration; (bbb) cause sexual arousal or stimulation; or (ccc) be sexually aroused or stimulated thereby; or

(dd) any object resembling the genital organs or anus of a person, and in the case of a female, her breasts, or an animal; or

(iii) mouth of the complainant and the genital organs or anus of an animal;

(b) the masturbation of one person by another person; or

(c) the insertion of any object resembling or representing the genital organs of a person or animal, into or beyond the mouth of another person, but does not include an act of sexual penetration.

Rape: Any person (‘A’) who unlawfully and intentionally commits an act of sexual penetration with a complainant (‘B’), without the consent of B, is guilty of the offence of rape.

Sexual assault: (1) A person (‘A’) who unlawfully and intentionally sexually violates a complainant (‘B’), without the consent of B, is guilty of the offence of sexual assault.

(2) A person (‘A’) who unlawfully and intentionally inspires the belief in a complainant (‘B’) that B will be sexually violated, is guilty of the offence of sexual assault.