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The workplace should be a place of dignity and respect for every individual

A new Code of Good Practice on the Prevention and Elimination of Harassment came into effect on 18 March 2022. The Code, issued in terms of the Employment Equity Act (EEA), replaces the previous Code of Good Practice on Handling Sexual Harassment cases in the Workplace.

The Code applies to actions by employers, employees, clients, customers and other third parties with whom an employer does business that fall within the ambit of ‘harassment’ as defined in the Code.

Forms of harassment

Sexual harassment; bullying including cyber-bullying; gender-based violence; the use of power resulting in adverse consequences, particularly for vulnerable groups; harassment, teasing and insults based on someone’s race, sex or sexual orientation; shaming; threats of physical force and all other actions that can create a barrier to equity and equality in the workplace. Jokes with sexual or racial undertones, poking fun at someone’s sexual orientation, spreading unfounded rumours and stalking someone online all fall within its ambit.

Also included are certain situations where an employer might find it difficult to establish a complaint’s validity and take appropriate action. These situations include the use of pressure to affect an employee’s resignation; demotion without justification; and the use of disciplinary sanctions without ‘objective cause or efforts to problem solve’.

The Code applies to all employers (including trade unions) in all sectors, including the informal sector. It also applies to anyone having dealings with an employer, e.g., customers, clients, suppliers and others and includes volunteers, job seekers, job applicants and trainees within its protective ambit.

What constitutes harassment?

In broad terms, harassment exists when conduct (of an employer, fellow employees, customers, etc.) is unwanted; creates a hostile working environment (i.e., that is physically, emotionally, or psychologically unsafe and affects employee well-being or mental health); and is related to one of the prohibited grounds mentioned in section 6 of the EEA.
Employers are, in terms of the EEA, also vicariously (indirectly) liable for the wrongful acts of their employees if these are committed in the course and scope of employment unless it can prove that it has taken all reasonable steps to prevent this from happening.

Awareness and intention
The incident is looked at from the vantage point of the complainant. This means, amongst others, that harassment can still be unwanted even without the harasser being or having been made aware of it.

Unreasonable complaints
What if the complainant’s perception of the situation is unreasonable? The Code allows for an employer to show that the complainants’ perception is ‘not consistent with societal values reflected in the Constitution’.

What is required of employers?
Employers are required in terms of the Code to adopt a zero-tolerance stance about harassment. In this regard, it needs to develop a harassment policy in consultation with employees and their representatives that includes steps to be taken to prevent harassment and indicate what actions may follow if it occurs.

Conclusion
The EEA has always required employers to prevent and take action in case of discrimination in the workplace (including harassment). It will require a heightened sense of awareness among leaders, managers, supervisors, and employees in general about what is permitted.

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