New Harassment Codes
While there have been moves from the legislature to combat violence and harassment in the workplace, in many respects, the South African legislative framework was seen as falling short until Friday, 18 March 2022.
The Code creates a greater obligation on employers to counteract the devastating effects of violence and harassment in the workplace and highlights four “main forms” of Violence and Harassment;
(1) Sexual violence and harassment,
(2) Racial, ethnic, and social origin violence and harassment,
(3) Violence and harassment on account of a protected disclosure (whistleblowing) and
(4) Workplace Bullying.
The definition of Workplace Bullying casts a very wide net, defining it as “unwanted conduct in the workplace, which is persistent or a single incident which is serious and insults, demeans, humiliates, lowers self- esteem or self-confidence or creates a hostile or intimidating environment or is calculated to induce by submission or by actual or threatened adverse consequences, which includes the abuse of coercive power by either an individual or a group of individuals in the workplace.”
The Code also defines other terms for the first time in our law, such as; cyber bullying, “the inappropriate use of technology, as an expression of psychological Violence and Harassment through email, text, memes, and web posts on any form of technology which has the same effect as conventional bullying”, mobbing, a particularly vile form of bullying defined as, “harassment by a group of people targeted at an individual”, and victimisation which is “the action of singling someone out for cruel or unjust treatment”.
The definition of sexual harassment has been shortened to “unwelcome conduct of a sexual nature that violates the rights of an employee”, taking into account:
• Whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation;
The Code of Good Practice on the Prevention and Elimination of Violence and Harassment in the Workplace (the Code) became effective on 18 March 2022.
• Whether the sexual conduct was unwelcome;
• The nature and extent of the sexual conduct; and
• The impact of the sexual conduct on the employee.
The requirement that sexual harassment must constitute a barrier to equity in the workplace has been removed.
This step will simplify the test for what may constitute sexual harassment.
A more extensive list of definitions for the various forms of conduct that may constitute violence and harassment in the workplace is also included in the Code. The Code extended the application of perpetrators and victims of harassment further to non-employees to include suspended workers, workers whose employment has been terminated, persons in training, and retains the catch-all of “others having dealings with the organisation”.
Item 5 of the Code provides for seven “Guiding Principles” to guide the conventionalisation and implementation of strategies to prevent and eliminate violence and harassment in the world of work:
• Workplaces should be free of violence and harassment;
• Employers are responsible for providing information, instructions and training to ensure a working environment that is safe and without risk to health;
• A workplace culture should be created so that complainants affected by violence and harassment may bring a complaint without fear of reprisal and with the assurance that their complaints will not be trivialised or ignored;
• Employers, employees, employee organisations and trade unions are required to proactively refrain from committing acts of violence and harassment; and are re-quired to play a role in creating and maintaining a working environment in which violence and harassment is regarded as unacceptable;
• Employers, employees, employee organisations and trade unions have a role to play towards creating and maintaining a working environment in which violence and harassment is regarded as unacceptable;
• Employers, employees, employee organisations and trade unions should attempt to ensure that persons who are dealing with the employer are not subjected to violence and harassment; and
• Employers, employees, employee organisations and trade unions should take appropriate action when instances of violence and harassment occur in the world of work.
Importantly, violence and harassment in the workplace is wider than sexual harassment and the Code requires employers to implement measures that will combat all forms of violence and harassment in the workplace. The aforesaid principles should guide the implementation of preventative measures, policies, training and processes to deal with all incidents of violence and harassment and not just sexual harassment.
Item 7 of the Code identifies the four main forms of violence and harassment in the workplace which was not considered previously as sexual violence and harassment; violence and harassment of a racial, ethnic and social origin; bullying in the workplace; and violence and harassment due to a protected disclosure.
The relevance and importance of the Codes to employers are the following:
• The definition of perpetrator and victim has been expanded which means that employers have to implement additional controls and measures to prevent and eliminate violence and harassment in the workplace;
• While many continue to work from home and utilise technology to communicate with colleagues and clients, controls and procedures need to be implemented to counteract violence, harassment and bullying that occurs electronically;
• As we move back into a more traditional working environment the extension of the new forms of violence and harassment will require the employer to update their policies in line with the Code; and
• Further consideration must be given to vicarious liability in terms of Section 60 of the Employment Equity Act which could render the employer liable for the wrongful conduct of the perpetrator upon the failure of the employer to take all reasonable steps.
That being said, employers are not without guidance in terms of the Codes, and should use the seven guiding principles, as well as the stipulated procedures to ensure they fulfil their obligations in terms of the Employment Equity Act to eliminate violence and harassment in the workplace, and in the unfortunate event that an incident has occurred that it is not swept under the rug.
There is no indication of when the Code will be implemented but employers should consider a review of their internal policies and procedures in respect of violence and harassment in the workplace to ensure all employees, and others in the world of work, are protected and to protect itself from the rule of vicarious liability.