Code opens way to tackle harassment at work

The Code of Good Practice on the prevention and elimination of harassment in the workplace (code) was published on March 18 2022, and applies to all employers and employees, as provided for in the Employment Equity Act (EE Act).

This code includes physical, verbal, psychological and sexual harassment as opposed to the original code which focused only on sexual harassment. It is clear in its requirement of employers to understand their obligation to take appropriate steps to prevent any and all forms of harassment in the workplace.

In June 2021, the Constitutional Court stated that the legislative regime adopted to deal with SA’s sexual harassment plague has been largely ineffective. Sexual harassment is an abuse of power that often mostly affects vulnerable employees who rarely become whistle-blowers.

Many do not report harassment of any kind for fear of being fired which is even more daunting, given the high levels of unemployment in SA and their risk of not working again. In addition to the fear of job loss, some victims feel concerned that they will be perceived as troublemakers which will inevitably risk their progress within the company they work in.

This adds to the reasons for the requirement of confidentiality that must be adhered to in all internal and external communications relating to any reported incident of harassment within a workplace. It is vital that employers create an environment where those who feel harassed can report this securely without their grievances being trivialised or not believed.

EMPLOYER POLICIES

On September 13 2022 at the department of employment & labour’s 22nd Annual Employment Equity (EE) Roadshow in collaboration with the Commission for Conciliation, Mediation, and Arbitration (CCMA), the department’s deputy director: employment equity policy and compliance, Niresh Singh, called on employers and trade unions to be active participants in the implementation of policies that seek to eliminate harassment in the workplace.

It is important to acknowledge and deal with harassment in any form. Employers need to have a harassment policy in place within which the range of disciplinary penalties must be set out and must be in proportion to the seriousness of each harassment type. In addition, counselling, treatment and support programs for employees should be outlined in the policy.

HARASSMENT IS DISCRIMINATION

Employee harassment is considered a form of unfair discrimination in the EE Act. The code defines harassment to include “the use of physical force or power, threatened or actual, against another person or against a group or community, which either results in or has a high likelihood of resulting in social injustice, economic harm, injury, death, physical and psychological harm, maldevelopment or deprivation”.

The department of employment & labour has warned that employers who fail to act on harassment issues within the workplace could face being held liable for the perpetrator’s conduct.

CCMA JURISDICTION

The CCMA has jurisdiction to conciliate all workplacerelated harassment disputes.

Employees have the right to let any perpetrator know that their conduct or form of harassment is not welcome. This is, however, often difficult, given that many victims are in more junior positions and feel unable to confront the perpetrator. So the employers’ policy needs to state exactly what steps are possible so that the harassment can be reported and acknowledged. Steps should then be taken to address the harassment.

This needs to happen before the CCMA is involved. It does not mean all internal procedures need to have taken place before contacting the CCMA but rather that the employer has been alerted. The onus is then on the employer to protect the employee.

MANDATORY PROTECTION

Protection for an employee includes public and private physical spaces within their place of work as well as related communications in all forms.

If an employer provides or controls transport to and from the place of employment, this falls under the protection employees need to enjoy. Employers may certainly be held vicariously’liable for their employees transgressions and it is clear the burden of protection lies extensively on all employers to ensure the work environment is conducive to a place of safety and protects and respects the dignity of all employees at all times.

That being said, employees also have a duty to ensure they contribute to a safe place of work by behaving appropriately.

EMPLOYER’S RESPONSIBILITIES

The code states that employers may be held liable for an employee’s actions in terms of the EE act.

That confirms again that employers need to educate themselves as well as their employees on the guidelines of the code and ensure that their policies are up to date, acknowledged and, most importantly, adhered to.

Hopefully the result of this will see a decline in the high rate of harassment cases seen in our courts and at the CCMA.

EMPLOYEES HAVE A DUTY TO ENSURE THEY CONTRIBUTE TO A SAFE PLACE OF WORK BY BEHAVING APPROPRIATELY