Further to the ratification of the International Labour Organization (ILO) Convention concerning the elimination of violence and harassment in the world of work (No. 190) and its accompanying Recommendation (No. 206) on 24 November 2021; the Department of Employment and Labour has taken further notable steps towards the prevention and elimination of harassment within South African workplaces.
The Code of Good practice on the Prevention and Elimination of Harassment in the Workplace has been Gazetted, effective from 18 March 2022. This code is aligned to the abovementioned ILO Convention and has been introduced for the purposes of:
Despite the fact that South Africa has long-standing laws concerning equity in the workplace, through the Employment Equity Act No.55 of 1998 and other regulations, the new code of good practice takes things a step further by aiming to ‘completely eliminate all forms of harassment in the workplace.’
To this end, the Code provides the following guidelines:
Definition of Harassment
In this code the term ‘harassment’ is defined in such a way that it covers much more than the grounds of discrimination, which are prohibited as per section 6(1) of the Employment Equity Act.
Harassment is defined as:
Sexual harassment in the working environment is a form of unfair discrimination and is prohibited on the grounds of sex and/or gender and/or sexual orientation.
In terms of the code, harassment against all employees is defined as an abuse of power!
Types of harassment
The code of practice has put forth a wide variety of conduct and specific examples of conduct that falls within the scope of harassment within various workplaces.
Some of these types of conduct and/or harassment are obvious, such as physical force, victimisation, racist remarks or sexual advances, however, the code has gone a step further and also highlights a wider range of indirect actions which can be seen as harassment such as gossip or making another employee the butt of a joke.
Some of the specific examples of harassment highlighted in the code include:
Scope of application of the Code
The code recognises that there is a wide variety of persons who could either be perpetrators or victims of harassment. Although the code applies to the working environment as a guide to employers, employees and applicants for employment, the perpetrators and victims of sexual harassment may include:
The application of the code is not only limited to the traditional workplaces, but also extends to any situation in which the employee is working, or which is related to their work.
Obligations on all parties
The code places an obligation on all parties as having a role to play in contributing towards creating and maintaining a working environment in which sexual harassment is unacceptable, prevented and eliminated.
The code further identifies the steps that employers must take to eliminate harassment, including the development and implementation of policies, procedures and practices for the handling of harassment and more specifically procedures that will lead to the creation of workplaces that are free from harassment.
Great emphasis is placed on confidentiality in handling allegations or grievances of harassment, as well as how and when this is to be maintained.
Additional support to employees
The code makes provision for additional support for employees who are victims of serious sexual harassment, in particular where there is a need for medical advice, trauma counselling, etc.
Where an employee’s sick leave has been exhausted, employers need to give consideration for the provision of additional paid sick leave in appropriate circumstances.
Where the employee has been ill for a period in excess of two weeks, the employee may be entitled to claim an illness benefit in terms of section 20 of the Unemployment Insurance Act, 2001.
The issue of harassment is so important that it is required to be included in orientation, education and training programmes, in a manner that is accessible to all employees.
Importance of the new Harassment Code
The introduction of the Harassment Code should be a motivation for employers to assess their current policies and procedures which are in place to address harassment in the workplace and ensure they meet with the guidelines as set out in the Harassment Code. Alternatively, if the requisite policies are not in place, there is no better time than now to take the necessary actions to draft and implement the policies and necessary procedures to ensure that all workplaces are free of all forms of harassment.
A failure to take adequate heed of the requisite obligations may result in liability for employers.
MISA, in partnership with a number of employers has launched the Industry Equality and Diversity Forum (IEDF), working together to ensure that the motor industry prevents and eliminates all forms of violence and harassment within the various workplaces, proactively working towards creating workplaces which are rooted in diversity and free from violence and harassment.
Through this Forum, we aim to assist employers and employees with the implementation of the relevant policies and workplace education towards achieving this goal.
If you are interested in participating within the Forum, please contact Mrs. Thandeka Phiri on Thandeka.Phiri@ms.org.za or on 011 476 3920.