31 May 2021 by , and Employment Law Alert

Violence and harassment in the workplace: Employers’ duty bound to expand protection of victims

This alert expands on a previous alert in which CDH explores the International Labour Conference’s (ILO), new Convention and Recommendation titled the “Convention Concerning the Elimination of Violence and Harassment in the World of Work” (the Convention).

Currently, the Employment Equity Act 55 of 1998 (The Employment Equity Act) and the Amended Code of Good Practice and Handling of Sexual Harassment (The Amended Code) provides for how to handle sexual harassment and the various forms of sexual harassment in the workplace. The Amended Code does not cover any other of form of harassment in the workplace.

While there have been moves from the legislature to combat violence and harassment in the workplace, in many respects the current South African legislative framework has been seen as falling short.

A 2018 study in South Africa estimated that nearly a third of women were victims of unwanted sexual advances in their workplaces.

In August 2021, South Africa responded to address issues of gender-based violence and harassment in the workplace by publishing for comment the Draft Code of Good Practice on the Prevention and Elimination of Violence and Harassment in the Workplace (the Draft Code). The content of the Draft Code aligns with and is guided by the Convention, and is likely to be the statutory intervention that will implement the conscripts of the Convention once it is ratified. Accordingly, the Draft Code has created a larger obligation on the employer to counteract the devastating effects of violence and harassment in the workplace.

The Draft Code has introduced a more extensive list of definitions for the various forms of conduct that may constitute violence and harassment in the workplace. The Draft Code is wider than sexual harassment to cover other forms of violence and harassment in the workplace. In particular, the definition of sexual harassment is shortened to “unwelcome conduct of a sexual nature that violates the rights of an employee”, taking into account:

  1. Whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation;
  2. Whether the sexual conduct was unwelcome;
  3. The nature and extent of the sexual conduct; and
  4. The impact of the sexual conduct on the employee.

The Draft Code has removed the requirement that sexual harassment must also constitute a barrier to equity in the workplace. This further step will simplify the test for what may constitute sexual harassment.

The Draft Code extended the application of perpetrators and victims of harassment further to non-employees to include suspended workers, workers whose employment has been terminated, persons in training and retains the catch-all of “others having dealings with the organisation”.

The courts have considered what constitutes the world of work, and when alleged sexual harassment in the workplace may occur. In the case of Campbell Scientific Africa (Pty) Ltd v Simmers and Others (CA 14/2014) [2015] ZALCCT 62 (23 October 2015), sexual harassment occurred away from the employer’s premises and after working hours. The Court held that the employer was entitled to discipline the employee as the sexual harassment occurred in the context of a work-related social event and affected the employment relationship. (own emphasis)

The Draft Code has confirmed the application of the aforesaid case law to encompass conduct that occurs in the course of, linked with or arising out of work.

Item 5 of the Draft Code provides for seven “Guiding Principles” to guide the conventionalisation and implementation of strategies to prevent and eliminate violence and harassment in the world of work:

  1. Workplaces should be free of violence and harassment;
  2. Employers are responsible for providing information, instructions and training to ensure a working environment that is safe and without risk to health;
  3. A workplace culture should be created so that complainants affected by violence and harassment may bring a complaint without fear of reprisal and with the assurance that their complaints will not be trivialised or ignored;
  4. Employers, employees, employee organisations and trade unions are required to proactively refrain from committing acts of violence and harassment; and are re-quired to play a role in creating and maintaining a working environment in which violence and harassment is regarded as unacceptable;
  5. Employers, employees, employee organisations and trade unions have a role to play towards creating and maintaining a working environment in which violence and harassment is regarded as unacceptable;
  6. Employers, employees, employee organisations and trade unions should attempt to ensure that persons who are dealing with the employer are not subjected to violence and harassment; and
  7. Employers, employees, employee organisations and trade unions should take appropriate action when instances of violence and harassment occur in the world of work.

Importantly, violence and harassment in the workplace is wider than sexual harassment and the Draft Code requires employers to implement measures that will combat all forms of violence and harassment in the workplace. The aforesaid principles should guide the implementation of preventative measures, policies, training and processes to deal with all incidents of violence and harassment and not just sexual harassment.

Item 7 of the Draft Code identifies the four main forms of violence and harassment in the workplace which was not considered previously as sexual violence and harassment; violence and harassment of a racial, ethnic and social origin; bullying in the workplace; and violence and harassment due to a protected disclosure.

The relevance and importance of the Draft Codes to employers are the following:

  • The definition of perpetrator and victim has been expanded which means that employers have to implement additional controls and measures to prevent and eliminate violence and harassment in the workplace;
  • While many continue to work from home and utilise technology to communicate with colleagues and clients, controls and procedures need to be implemented to counteract violence, harassment and bullying that occurs electronically;
  • As we move back into a more traditional working environment the extension of the new forms of violence and harassment will require the employer to update their policies in line with the Draft Code; and
  • Further consideration must be given to 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.

That being said, employers are not without guidance in terms of the Draft Codes and should use the seven guiding principles, as well as the stipulated procedures to ensure they fulfil their obligations in terms of the Employment Equity Act to eliminate violence and harassment in the workplace, and in the unfortunate event that an incident has occurred that it is not swept under the rug.

There is no indication of when the Draft Code will be implemented but employers should consider a review of their internal policies and procedures in respect of violence and harassment in the workplace to ensure all employees, and others in the world of work, are protected and to protect itself from the rule of vicarious liability.

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