New Workplace Harassment Code: What You Need to Know
On 18 March 2022, Mr Thulas Nxesi, the Minister of Employment and Labour, repealed the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace and replaced it with the new Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace in terms of section 54 of the Employment Equity Act (EEA).
This code came into effect on 18 March 2022 and aims to create safe workplaces free of harassment by providing guidelines to employers and employees on the elimination, prevention and management of all forms of harassment and in any activity linked to, or arising out of work. The code stipulates the necessary steps that the employer must take to eliminate harassment, including the development and implementation of policies and procedures that would contribute to the creation of harassment-free workplaces.
Who Does it Apply to?
This code applies to all employees and employers in the working environment. The potential perpetrators and victims of harassment include but are not limited to employers, employees, job applicants, volunteers, persons in training including interns, apprentices and persons in learnership, clients, suppliers, contractors and anyone having dealings with a business.
The harassment code applies in any situation in which the employee is working. This includes work-related trips such as training or events and work-related technologies and communications.
The code in particular deals with sexual harassment and racial, ethnic or social origin harassment. Harassment is defined as (a) unwanted conduct which impairs dignity, (b) which creates a hostile or intimidating work environment for one or more employees or has the effect of inducing submission by actual or threatened adverse consequences, (c) also which relates to one or more grounds in respect of which discrimination is prohibited in terms of section 61(1) of the EEA.
Types of Harassment
The harassment code records categories of behaviour that constitute harassment in the workplace including physical, verbal and psychological conduct. These conducts include but are not limited to the act of bullying including cyber bullying, intimidation, unwanted sexual conduct, discriminating and sabotaging.
Employers have been entrusted with the duty to create a working environment that applies an attitude of zero tolerance towards harassment in the workplace. To achieve this, employers must adopt internal harassment policies and such policies must be communicated to the employees. Employers are also required to develop clear internal guidelines that plainly set out the procedures of dealing with harassment in the workplace. These guidelines should make clear provisions on the formal and informal procedures required when reporting harassment in the workplace.
Employers are required to create a safe space for employees that allows victims of harassment to raise their complaints freely and fearlessly. Employers are obligated to attend to employees’ harassment grievances in a manner that is effective whilst also ensuring that the identities of the persons involved are kept confidential.
Should the employer fail to comply with the abovementioned obligations, they run the risk of being liable, not only under employment law, but under the general principles of vicarious liability for any misconduct committed by the employee that causes harm to others.
Ms Nozi Masondo is a UKZN alumnus with an LLB and LLM in Business Law. She is an Admitted Attorney Practising at Austen Smith Attorneys, Pietermaritzburg.
*The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the University of KwaZulu-Natal.