12 October 2022
Most have heard the quote by Benjamin Franklin which states “By failing to prepare, you are preparing to fail.” This is especially true when it comes to implementing an effective workplace harassment policy.
Since the publishing of the “Code of Good Practice on the Prevention of Elimination of Harassment in the Workplace” (“Harassment code”), effective 18 March 2022, many employers, compliance and HR practitioners have been hard at work in order to ensure that their organizations fulfil the duty placed on employers for creating and maintaining a safe working environment which is free from all forms of harassment and violence. One of the ways that they have done so is through frantically drafting and rolling out Workplace Policies for the Prevention and Elimination of Harassment.
However, in drafting these policies, many have placed the cart before the proverbial horse in that they did not conduct a workplace risk assessment prior to the policy drafting. One may wonder of what importance is a risk assessment if a workplace policy is drafted based on the principles of the Harassment Code?
A workplace policy on elimination of harassment cannot be effected on a one-size-fits-all basis, rather it needs to take into account and address factors which are specific to that workplace. This is where the risk assessment comes into play. The risk assessment will ensure the effectiveness of the policy as it will address and take into account circumstances specific to each workplace, the parties with whom the business has dealings and the parties to whom the business owes a duty to ensure a safe working environment.
A risk assessment is vital as the employer’s duty of creating and maintaining a safe working environment free of all forms of harassment, discrimination and violence extends beyond just working hours, therefore, a workplace harassment policy that lacks specific context is unlikely to assist employers in meeting their obligations in terms of the Occupational Health and Safety Act 85 of 1993 as amended in the Harassment Code.
In regards to workplace harassment, discrimination and violence, the employer can be held vicariously liable for the acts of its employees and even those of parties with whom the business has dealings with.
Based on the notion that an employee is an extension of the employer and subsequent to the decision to employ, an obligation is imposed on the employer to create a workplace safe from any unfair discrimination, violence and harassment. This obligation leads to employers being vicariously liable for any harassment, violence and discrimination towards an employee which is committed in the course and scope of his/her employment and/or within the world of work.
In the unfortunate event of a wrong-doing and in determining vicarious liability, the courts analyse both the proactive steps taken by the employer in preventing harassment, and in stances when harassment has occurred, analyse whether appropriate remedial action was taken.
In assessing the workplace risks, employers must have regards to:
The workplace risk assessment needs to cover the following risks:
In implementing effective prevention strategies, employers need to take into account:
The outcome of the risk assessment/s will inform the policy and the associated monitoring and evaluation procedures.
As much as the workplace risk assessment process is integral to the drafting of an effective workplace policy, it is in no way a once-off process, but is rather an on-going integral process that flows from the monitoring and evaluation procedures within the policy.
Therefore, even after a policy on the elimination of violence and harassment has been written and implemented, risk assessments will need to be conducted on a regular basis in order to ensure the continuous effectiveness of the policy considering the constant changes in the world of work and the associated processes.
If you are interested in receiving more information on (and participating in) initiatives for the elimination of violence and harassment within the motor industry, please contact Mrs. Thandeka Phiri at Thandeka.Phiri@ms.org.za or on 011 476 3920
This will allow you to receive an invitation to the Industry Equality and Diversity Forum (IEDF) and to benefit from the training workshops which are provided free of charge to both employees and employers within the retail motor industry.
Alternatively, if you need assistance with a harassment matter, you may contact MISA on endGBV@ms.org.za
“Before anything else, preparation is the key to success” Alexander Graham Bell