The Code says that a complainant can choose to follow a formal procedure or an informal procedure. If the complainant chooses NOT to follow a formal procedure, the employer should still assess the risk to other people in the workplace. The employer must take into account all relevant factors, including:

• How serious the alleged sexual harassment was, and
• Whether the alleged harassor has a history of sexual harassment.

If the employer believes after a proper investigation that there is a serious risk of harm to the people in the workplace, he or she can follow a formal procedure, regardless of what the complainant wants. The complainant must obviously be informed of this.

Common Law

An employer can be liable in terms of the common law if he or she does not provide a safe working environment. In the Media 24 Ltd and another v Grobler case, the court held that the employer has a legal duty to take reasonable steps to prevent sexual harassment of its employees in the workplace and is obliged to compensate the victim for harm caused because of this.

The court also said that if a person gets Post-Traumatic Stress Syndrome arising out of or in the course of employment, the victim would have to claim compensation under the COIDA and would not be able to proceed with a civil claim against the employer.