South Africa regards all forms of harrassment as a form of unfair discrimination, and constitutes a barrier to equity and equality in the workplace. It is a Constitutional Right to have your dignity protected, to enjoy equality and fair labour practices as stipulated in the Bill of Rights. The new Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (“Code”) takes a step further by aiming to ‘eliminate all forms of harassment’ thus replacing the previous code written in 2005.
The Code (effective 18 March 2022) is intended to address the prevention, elimination and management of all forms of harassment that pervade the workplace. The new Code expands on the types of harassment – including sarcasm, condescending language, eye contact or gestures, joking at someone else’s expense, negative gossip, deliberately causing embarrassment or insecurity as well as social or professional exclusion. The Code additionally provides steps that employers can take to eliminate harassment and further provides guidelines on human resource policies, procedures and practices related to harassment and prevention of its recurrence.
Importance of the new Code
Although this Code serves as a guideline, it is considered to be substantive legislation, therefore it is legally binding. The introduction of the Code should be an impetus for employers to assess their current policies and procedures in place to address harassment in the workplace and ensure that they meet with the guidelines stipulated in the Code. Failure to take adequate heed of the obligations, may result in liability for employers in terms of section 60 of the Employment Equity Act 55 of 1998 (“EEA”).
The framing of harassment recognises the intersection of factors which may increase the risk of harassment, such as race, religion, gender or disability. Significantly, the new Code recognises cyber bullying, online harassment and covert surveillance of an employee with harmful intent as possible expressions of workplace harassment.
The term ‘harassment‘ is not currently defined in the EEA, with the new Code defining it as:-
- Unwanted conduct, which impairs dignity;
- Which creates a hostile or intimidating work environment for one or more employees or is calculated to, or has the effect of, inducing submission by actual or threatened adverse consequences;
- Is related to one or more grounds of which discrimination is prohibited in section 6(1) of the EEA.
The new Code which is more extensive than its predecessor states that in the course of establishing whether there has been harassment, and for the purpose of the EEA, it is not necessary to establish the intention or state of mind of the perpetrator. It is important to note that the new Code acknowledges that an act or threat of violence is not an essential element of harassment and that harassment may either occur as a result of a pattern of persistent conduct or that it may be a single instance or event.
To whom does the Code apply ?
The Code applies to the working environment, the perpetrators and victims include but are not limited to owners, employers, managers, supervisor, employees, job seekers and job applicants, persons in training including interns, apprentices and persons on learnerships, volunteers, clients and customers, suppliers, contractors and others having dealings with a business. Furthermore, according to the new Code, employees that work remotely or from home are protected against harassment.
The above mentioned parties need to have in-depth knowledge of all definitions, types and forms of harassment.
The test to determine harassment, has that changed ?
The four factors which need to be taken into account to establish whether there has been harassment, remain the same: namely, whether the harassment is on the prohibited grounds of gender, sex and or sexual orientation; whether the conduct was unacceptable or unwanted; the extent and nature of the conduct as well as the impact of the conduct.
Employees, take note!
The Code applies not only to employers but to employees too. There has been a rise in harassment in the workplace coming from our fellow employees that are in power, victimising and terrorising others. The Code now protects employees from psychological abuse, cyberbullying, threats, insults, shaming, hostile teasing, racist language, constant negative judgement, sexist and LGBTQIA+ phobic. Workers now have the right to approach the The Commision for Conciliation, Mediation and Arbitration (“CCMA”) or Labour Court as well as take civil action in parallel.
Obligations of the employer
Employers are under obligation in terms of Section 60 of the EEA to take proactive and remedial steps to prevent all forms of harassment in the workplace. They should also make sure they have policies in place that protect employees against harassment as well as make the reporting of harassment easy and confidential.
Employers should be aware of the broadened list of types of harassment – not forgetting to draw attention to the new section dealing with racial, ethnic or social origin harassment as well as an objective test – ( whether a reasonable person would have acted the same way ) to establish if there has indeed been harassment.
What exactly should the employer do when a case of harassment has been brought forward ?
Firstly, the employer must consult all relevant parties, advising the complainant of all the formal and informal procedures that deal with harassment, secondly take the necessary steps to address the complaint in accordance with the Code and the employer’s applicable policy, where reasonably practicable, offer the complainant advice, counselling and assistance and lastly take the necessary steps to eliminate harassment following the procedures as set out in this Code.
Confidentiality and additional support
Employers and employees must ensure that grievances about harassment are investigated and handled in a manner that ensures that the identities of the persons involved are kept confidential for the purpose of protecting the confidentiality of all parties.
Where an employee’s existing sick leave entitlement has been exhausted, the employer should give due consideration to the granting of additional paid sick leave in cases of serious harassment, where the employee, on medical advice, requires trauma counselling. Should the harassment result in an employee being ill for longer than two (2) weeks, the employee may be entitled to claim illness benefits in terms of section 20 of the Unemployment Insurance Act 63 of 2001.
Employers should include the issue of harassment in their orientation, education and training programs in an accessible and easy to understand format. Trade Unions should also include the issue of harassment in their education and training programs for shop stewards and employees in an accessible and easy to understand format.
With that being said, it is the responsibility of all individuals in the workplace to create a harassment free environment, starting with educating the employees, managers and employers on harassment, ensuring there are policies and procedures in place, and lastly making sure that reported cases of harassment are dealt with adequately. Let’s not be caught on the wrong side of the law.
Notice 1890 of Gov Gazette 46056 of 18 March 2022 Prevention and Elimination of Harassment in the workplace.
Author: Thembi Makhado