The Minister of Employment and Labour recently repealed the “Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace” and replaced it with the “Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, which came into effect on 18 March 2022.
The Code aims to ensure that South African labour law legislation complies with international standards, particularly the International Labour Organisation’s Convention 190, concerning the Elimination of Violence and Harassment in the World of Work. It aims to introduce an inclusive, integrated, gender-responsive approach to prevent and eliminate violence and harassment in the working environment.
The Code applies to all employers and employees in both the formal and informal sector, and prospective employees. The Code also accepts that culprits and victims of harassment may include, but are not limited to customers, volunteers, clients, owners and generally comprises any person who interacts with the business.
Interestingly, the application of the Code and the protection it offers to prevent harassment against employees extends far beyond merely the workplace itself and applies to social or training activities, work-related trips and communications, and the location of employees who are required to work from home.
Although the Employment Equity Act (EEA) does not explicitly define the term ‘harassment’, the Code provides that the term is generally understood to be any unwelcome (or unwanted) conduct which:
- Impairs
dignity;
- 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 and;
- is related to one or more grounds in respect of which discrimination is prohibited in terms of section 6(1) of the EEA.
The term “harassment” includes violence, physical abuse, psychological abuse, emotional abuse, sexual abuse, gender-based abuse and racial abuse. It includes using physical force or power, whether threatened or actual, another person or against a group or community. The Code also highlights that factors such as gender, race, religion or disability increase the potential risk of harassment.
The Code places a positive duty on employers, amongst others:
- adopt and implement policies and procedures that provide a clear statement of the employer’s position to deal with harassment in the workplace;
- to implement training initiatives to educate employees at all levels about harassment;
- to reinforce and maintain compliance through ongoing awareness programmes and;
- to take appropriate disciplinary action where instances of harassment occur in the workplace.
Employers should be aware that failure to take adequate steps to eliminate harassment once an allegation of harassment has been submitted within a reasonable time will render the employer vicariously liable for the employee’s conduct in terms of section 60 of the EEA.
A complainant of harassment also has the right to lay a criminal charge or institute civil proceedings against the alleged perpetrator.
Contact your nearest SEESA office to assist your business with any queries regarding the drafting and implementation of policies to prevent and eliminate harassment in the workplace. Alternatively, leave your name on our website for a SEESA representative to contact you.
About the author:
Jaco Lombard is a SEESA legal advisor in the Labour and Consumer Protection & POPI department at SEESA’s Bloemfontein branch. He obtained his LL.B from the University of the Free State in 2019 and completed his practical vocational training in 2021.
Resources:
- Department of Employment and Labour (South Africa). 2022. Employment Equity Act (55/1998): Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace. (Notice 681, Government Gazette 46056:14, 18 March;
- Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000 ;
- Protection from Harassment Act, 17 of 2011;
- Employment Equity Act, 55 of 1998;
- “The Harassment Code” by Jacques van Wyk, Director; Andre van Heerden, Senior Associate; and Danelle Plaatjies, Candidate Attorney (Werksmans Attorneys);
- “The prevention and elimination of harassment in the workplace” by Angela Clark (Beech Veltman Incorporated)
- “South Africa: harassment in the workplace – employers to take note of their obligations under the new code of good practice” by Nadine Mather (Bowmans)
- “Kode oor grappies by die werk kan jou looi” by Christel Cornelissen (Maroela Media)