On 18 March 2022 the Minister of Employment and Labour published the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (the new Code) and simultaneously repealed the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace, 2005 (the previous Code).
The Purpose of the new Code
The International Labour Organisation (the ILO) adopted a new Convention concerning the Elimination of Violence and Harassment in the World of Work and this Convention obliges ratifying states to adopt an inclusive, integrated and gender-responsive approach to prevent and eliminate violence and harassment in the world of work. The Employment Equity Act
No. 55 of 1998 (the EEA), the previous Code, and the new Code were published in South Africa to address the issues dealt with in the Convention.
The new Code has a broader objective than that of the previous Code and aims to eliminate all forms of harassment in the workplace and any activity linked to or arising out of work, as opposed to sexual harassment only. The new Code provides guidelines on human resources policies, procedures, and practices to prevent and eliminate all forms of harassment from occurring, or reoccurring, in the workplace. It also sets out the steps that employers must take to eliminate harassment and obliges them to create an environment in which employers and employees respect one another’s integrity, dignity, privacy, and their right to equality in the workplace.
The Application of the new Code
It is important to note that the new Code applies to all employers and employees as provided for in the EEA and includes any person who employs another person to work for them as an employee in South Africa, including volunteers. The Code further provides that the perpetrators and victims of harassment extend beyond just employees and employers and may include owners, employers, managers, supervisors, employees, job seekers, job applicants, persons in training, clients, customers, suppliers, contractors, and any other person having dealings with the business. The new Code also makes it clear that employees should be protected against harassment in any situation in which the employee is working, or which is related to their work including, but not limited to, work-related trips, travel, training, events, or social activities.
Key points to take away from the new Code
- The new Code reaffirms that sexual harassment is a form of unfair discrimination and is prohibited on the grounds of sex, gender, or sexual orientation. It further provides that sexual harassment violates the rights of an employee and constitutes a barrier to equality in the workplace.
- The new Code furthermore reiterates that employers should have a zero-tolerance attitude toward harassment and that employers should create an environment in which the dignity of employees is respected. Moreover, the new Code also provides that a climate in the workplace should be created and maintained in which employees who raise complaints about harassment will not feel that their grievances are trivialized or fear reprisals.
- The new Code not only deals with harassment more broadly, but also deals with specific categories of harassment such as sexual harassment and racial, ethnic, or social origin harassment. The new Code describes “Harassment” as unwanted conduct which impairs dignity and 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.
- It is important to note that the new Code explicitly states that employers should communicate the contents of their harassment policies to all employees and that the procedures to be followed by a complainant about harassment and by an employer when harassment is alleged should be outlined in the policy. In addition, the availability of counseling, treatment, care, and support programs for employees should be outlined in the
Conclusion
Employers are urged to assess their current policies and procedures that address harassment in the workplace and ensure that they meet the guidelines set out in the new Code. A failure to do so may result in liability being incurred by the employer. The new Code is another reminder that sexual harassment should not be an acceptable occurrence in the workplace and that it is the duty of the employer to eliminate and prevent sexual harassment from occurring and to support anyone who reports such occurrence to his or her employer.
Written by Maxine Naude and Bavukile Magagula (Candidate Attorneys)