The Department of Employment and Labour has warned that employers in South Africa who do not take adequate steps to eliminate harassment or deal with cases appropriately may be held liable for the conduct of their employees who harass others.
Speaking at a departmental roadshow this week, the director for employment equity, Ntsoaki Mamashela, said that failure to take adequate steps to eliminate harassment once an allegation of harassment by an employee has been submitted within a reasonable time, will render the employer vicariously liable for the conduct of the employee.
This is in terms of section 60 of the Employment Equity Act, she said, adding that this is the case even if the harassment consists of a “single incident”.
She said that any allegation of harassment by an employee brought to the attention of the employer requires the employer to consult all relevant parties, take the necessary steps to address the complaint in accordance with the Code of Good Practice on the prevention and elimination of harassment in the workplace that was published on 18 March 2022.
Action must also include the employer’s policy and where applicable, any collective bargaining agreements and must take the necessary steps to eliminate the harassment, she said.
In March 2022, the department published the Code of Good Practice on the Prevention and Elimination of Violence and Harassment in the World of Work in the Government Gazette.
The code substantially expands on the different types of violence that an employee may experience in the workplace and what steps employers are required to take to deal with these forms of violence.
It highlighted these key forms of violence and harassment in the workplace:
Sexual violence and harassment
This includes any conduct that the person knows (or should know) is not welcome, offends the complainant or makes the complainant feel uncomfortable, and interferes with work.
The code lists various forms of conduct that would amount to sexual violence and harassment, including unwanted sexual attention and quid pro quo sexual harassment.
It also compels employers to consider further factors in a matter involving sexual violence and harassment. These factors include whether the conduct was unwelcome; the nature and extent of the conduct; and the impact of the conduct.
Racial, Ethnic, or Social origin violence and harassment
In terms of the code, racial violence and harassment are types of conduct that demean, humiliate or create a hostile or intimidating work environment for a complainant.
This may include conduct that
(1) intends to induce submission based on actual or threatened adverse consequences for the complainant and
(2) relates to a person’s membership of a group.
Abusive language and racist jokes, racially offensive material, racist name-calling, negative stereotyping, offensive behaviour creating hostility, exclusion from workplace interaction and activities, and marginalisation and threatening behaviour fall under this form of violence and harassment.
Workplace bullying
Workplace bullying is unwanted persistent conduct (or a single incident), which is serious and demeans, humiliates, or creates a hostile or intimidating work environment.
This conduct includes a wide range of insulting, demeaning or intimidating behaviours that lower the self-esteem or self-confidence of an employee.
Some examples of workplace bullying include harassing; offending, professionally or socially excluding someone, or negatively affecting their work tasks.
Mamashela said that the protection of the code covers not only employees, but any person who had dealings with an organisation.
This includes:
· Owners;
· Employers;
· Managers;
· Supervisors;
· Employees;
· Job seekers and job applicants;
· Persons in training including interns, apprentices and persons on learnerships;
· Volunteers;
· Clients;
· Suppliers;
· Contractors; and
· Others having dealings with an organisation.
She added that the code extends to both public and private spaces – where the worker is paid, during rest or meal breaks or using sanitary facilities, washing and changing facilities; work-related trips, travel, training, events, or social activities; related communications including those enabled by information and communication technologies; employer-provided accommodation; and when commuting to and from work in transport provided or controlled by the employer.
The department noted that the Commission for Conciliation, Mediation and Arbitration (CCMA) has jurisdiction in hearing disputes on harassment, provided the complainant earns R224,080.08 as per the Basic Conditions of Employment Act provision. Those above the threshold are covered only if there is consent or agreement.
“Harassment is in the eyes of the recipient and even a single incident can lead to harassment. Sexual harassment specifically is a good reason for a dismissal,” the department said.
Employers must embark on awareness programs in order to educate employees
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