New workplace harassment code: No more eye rolls, bullying, violence and harassment

The new workplace Harassment Code outlaws eye rolls, bullying, violence and harassment.

If you let go of your frustration when your boss is unfair by rolling your eyes, this is bad news for you, but it places a greater obligation on your boss to act when someone bullies or sexually harasses you or even threatens to hit you, makes it important.

The Code of Good Practice on the Prevention and Elimination of Violence and Harassment in the Workplace became effective on 18 March 2022 and according to law firm Cliffe Dekker Hofmeyr, creates a greater obligation on employers to counteract the devastating effects of violence and harassment in the workplace.

Jacques van Wyk, director and Andre van Heerden, senior associate at Werksmans Attorneys, says the minister has also repealed the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace.

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Aim and application of the Harassment Code

“The Harassment Code has been introduced to ensure that South Africa complies with international obligations while addressing the prevention, elimination and management of all forms of harassment in the workplace,” they explain.

Therefore, the code provides guidelines for employers and employees on the prevention and elimination of all forms of harassment as a form of unfair discrimination in the workplace and for developing human resources policies, procedures and practices related to harassment and appropriate procedures to deal with harassment and prevent its recurrence.

The code applies to all employers and employees, as well as applicants for employment and recognises that perpetrators and victims of harassment are not necessarily employers, but also employees and applicants for employment such as owners, clients, customers, suppliers, contractors, volunteers, persons in training including interns, apprentices and learnership students.

Even other people who have dealings with the employer’s business are included and the code also applies to any situation where the employee is working or which is related to their work.

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Main forms of violence and harassment in Harassment Code

The code highlights four main forms of violence and harassment:

• Sexual violence and harassment
• Racial, ethnic and social origin violence and harassment
• Violence and harassment on account of a protected disclosure or whistleblowing
• Workplace bullying.

Many employees complain of being bullied at work and it is good news that something can now be done about it.

The definition of workplace bullying casts a very wide net, defining it as “unwanted conduct in the workplace,” which is persistent or happens only once.

Workplace bullying is also serious and insults, demeans, humiliates, lowers self- esteem or self-confidence or creates a hostile or intimidating environment for another employee. It is calculated to make another employee submit and perpetrators sometimes use actual or threatened adverse consequences.

This includes an individual or a group of individuals using coercive power in the workplace.

In addition, the code defines other terms for the first time in our law, such as:

• cyber bullying, defined as the inappropriate use of technology, as an expression of psychological violence and harassment through email, text, memes and web posts on any form of technology which has the same effect as conventional bullying
• mobbing, a particularly vile form of bullying defined as, harassment by a group of people targeting an individual
• victimisation, defined as singling someone out for cruel or unjust treatment.

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Sexual harassment

The code also shortened the definition of sexual harassment to “unwelcome conduct of a sexual nature that violates the rights of an employee,” considering:

• whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation
• whether the sexual conduct was unwelcome
• the nature and extent of the sexual conduct
• the impact of the sexual conduct on the employee.

The requirement that sexual harassment must constitute a barrier to equity in the workplace has been removed to simplify the test for what may constitute sexual harassment, according to Cliffe Dekker Hofmeyr.

The code also contains a more extensive list of definitions for the various forms of conduct that constitute violence and harassment in the workplace and also extends the application of perpetrators and victims of harassment to non-employees, including suspended workers, workers whose employment has been terminated, trainees and retains the catch-all of “others having dealings with the organisation.”

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Guiding principles

These seven Guiding Principles that form part of the code guide the conventionalisation and implementation of strategies to prevent and eliminate violence and harassment in the world of work:

• Workplaces should be free of violence and harassment
• Employers are responsible for providing information, instructions and training to ensure a working environment that is safe and without risk to health
• A workplace culture should be created to ensure that complainants affected by violence and harassment can bring a complaint without fear of reprisal and with the assurance that their complaints will not be trivialised or ignored
• Employers, employees, employee organisations and trade unions are required to proactively refrain from committing acts of violence and harassment and play a role in creating and maintaining a working environment where violence and harassment are regarded as unacceptable
• Employers, employees, employee organisations and trade unions have a role in creating and maintaining a working environment where violence and harassment is regarded as unacceptable
• Employers, employees, employee organisations and trade unions should attempt to ensure that people who deal with the employer are not subjected to violence and harassment
• Employers, employees, employee organisations and trade unions should act when violence and harassment occur in the workplace.

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Other important provisions

Cliffe Dekker Hofmeyr points out that violence and harassment in the workplace is wider than sexual harassment.

The code then also requires employers to implement measures that will combat all forms of violence and harassment in the workplace and implement preventative measures, policies, training and processes to deal with all incidents of violence and harassment.

With the definition of perpetrator and victim expanded in the code, employers have to implement additional controls and measures to prevent and eliminate violence and harassment in the workplace.

The code also makes provision for people who still work from home and utilise technology to communicate with colleagues and clients by requiring employers to implement controls and procedures to counteract electronic violence, harassment and bullying. Employers must also update their policies in line with the code.

Another important aspect of the code is that employers must consider their vicarious liability in terms of Section 60 of the Employment Equity Act which could render the employer liable for the wrongful conduct of the perpetrator upon the failure of the employer to take all reasonable steps.

An emphasis is placed on confidentiality and how and when this is to be maintained. Employees should also get additional paid sick leave in appropriate circumstances.