South Africa’s new harassment code: what does this mean, its effects and how it should be dealt with in the workplace

Introduction

On 18 March 2022, the Minister of Labour, Thulas Nxesi, repealed the Code of Good Practice on the Handling of Sexual Harassment Cases in the workplace. This code dealt solely with sexual harassment in the work environment. The new Code of Good Practice on the Prevention and Elimination of Harassment in the workplace (“the code”) now casts a net over conduct much wider than sexual harassment, but what does this new code mean for employees in the workplace and what new obligations, if any, does it place on the employer to comply? This article aims to unpack the significance that the new Code of Good Practice has for employers and employees in the workplace.

What is harassment

Harassment is defined as unwarranted conduct that impairs one’s dignity. Harassment in its broadest sense includes, but is not limited to, physical abuse, psychological abuse, emotional abuse, sexual abuse, gender-based abuse, and racial abuse. It includes the use of physical force or power, be it threatened or actual, against another person, a group, or a community.

In the workplace, any harassment that occurs against any employee is to be regarded as an abuse of power. As a result, the new code recognises that harassment disproportionately affects employees in vulnerable occupations. Although there is labour legislation that protects employees from harassment, in practice, one tends to still find that employees find it difficult to access and exercise their rights, such as access to dispute resolution forums.

The old code versus the new code

The old code focused on factors that needed to be taken into account when assessing whether sexual harassment had taken place. Whereas the new code takes extra steps to point out the type of assessment that needs to be conducted.

Furthermore, the new code goes beyond addressing just sexual harassment and now includes gender-based violence and harassment, bullying, and racial, ethnic, or social origin harassment. Importantly, the new code introduces the need to address harassment outside of the workplace, specifically where employees are working from their homes or any place other than their physical workplace.

Moreover, the new code also acknowledges victims of harassment which includes women, men, and other vulnerable persons who have poor access to labour rights.

The New Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace

The code now expands on the definition of what constitutes unwarranted conduct that would impair one’s dignity. Other forms of unacceptable conduct are now included, such as bullying and racial harassment.

Although an explicit definition of what constitutes bullying is not provided, the examples that are given include, amongst other things, threats, shaming, hostile teasing, insults, constant negative judgement, criticism, and racist and sexist language. This is not a closed list and can be extended to include all forms of harassment, including the abuse of coercive power by an individual or group of individuals in the workplace, also called “mobbing” or, when done electronically, “cyber-bullying.”

Harassment in the form of bullying occurs when a complainant is placed in an inferior position and becomes the target of systematic negative social acts. Bullying includes, but is not limited to, slandering, criticizing, or spreading malicious rumours about employees; humiliating, insulting, or robbing an employee of the opportunity to gain more information in the workplace; giving false information; impeding their work; using disciplinary sanctions without a valid reason; demoting an employee without explanation; or pressuring an employee to resign. The abovementioned conduct from colleagues, managers, members of the public, customers, or clients can all contribute to what one would deem a “hostile work environment,” which undermines an employee’s dignity.

Sexual harassment

The new code deals with harassment on two grounds. Specifically, sexual harassment and racial harassment. Sexual harassment encompasses not only harassment of the opposite sex but also “same sex” harassment on the grounds of gender or sexual orientation. Apart from the recognised forms of sexual harassment such as sexual assault and rape, the code now also deems the acts of following someone, watching someone, and sharing sexually explicit pictures or objects via an electronic device with a person who finds such content unacceptable as forms of sexual harassment.

Racial harassment

Racial harassment is known as an incident or a series of incidents intended or likely to intimidate, offend, or harm an individual or group because of their ethnic origin, colour, race, religion, or nationality. The term “racial harassment” has been extended to now include racist verbal and non-verbal conduct, remarks, abusive conduct, racist name calling, offensive behaviour, gestures, and racist cartoons, memes, “innuendos,” and other subtle or intentional exclusion from workplace interaction and activities, as well as other forms of marginalisation.

The test for sexual harassment is partially subjective, whereas with racial harassment, there is a presumption that racial harassment has occurred even if the particular person at whom it is aimed is not offended or unaware of it. The test for racial harassment is with reference to the reaction of a normal, reasonable person in keeping with the values of the constitutional order and considering South Africa’s history of institutionalised discrimination.

Harassment may occur in public and private areas, even though the harassment being referred to is in relation to work relationships. It may occur where employees take their lunch breaks, during a work-related trip or social event, in homes in which domestic workers or caregivers work, and in the homes of employees working remotely from home, in accommodation or on transport provided by employers. In the case of Campbell Scientific Africa (Pty) Ltd v Simmers and Others (CA 14/2014) [2015] ZALCCT 62, the sexual harassment happened away from the employer’s premises and after working hours. In this case, the court stated that the employer was permitted to discipline the employee as the sexual harassment took place in a work-related social event environment and affected the employment relationship.

Another addition to be found in the new code is that victims are now broadly categorised or defined. The term “victim” includes employers, owners of businesses, managers, job seekers, trainees, volunteers, clients, customers, contractors, and others dealing with a business.

How the new harassment code should be implemented in the workplace

First and foremost, revised human resource policies are needed, and employers are expected to take a “zero tolerance” approach to harassment in the workplace. This means that employers must provide a clear statement of their stance on harassment in the workplace, which is that no form of harassment will be tolerated. The Employment Equity Act 55 of 1998 (“EEA”) makes it clear that employers are under an obligation to “take proactive and remedial steps to prevent all forms of harassment in the workplace.” If employers fail to effect such a policy, then employers may be held vicariously liable for any harassment committed, in terms of section 60 of the EEA.

Pursuant to that, the employer will need to adopt and communicate harassment policies and take the necessary and appropriate action if any harassment occurs. Third, policies should make it clear that any grievance filed will be investigated and handled confidentially, as well as outline the procedure that will be followed in cases of harassment and indicate where victims can find counselling, support, and treatment.

Procedures to be followed by a complainant when they have been harassed

The complainant will have to report the harassment to the employer, and the alleged offence committed needs to be brought to the employer’s attention immediately. The term “immediately” will depend on the facts and take into account the parties’ respective positions.

Following the filing of a complaint, an investigation must be conducted to prevent the harassment from recurring.  The parties must then be consulted, and steps must be taken to eliminate the harassment. Steps such as holding a disciplinary hearing against the culprit should be taken. Accordingly, employers should note that they may be held vicariously liable for harassment if they do not take the necessary steps to eliminate the harassment. Other penalties that may still be imposed range from warnings to dismissal for repeat offenders or in serious cases. The complainant can also institute civil or criminal actions against the alleged offender.

Are our courts in a position to handle the surge in cases due to the new code?

If the complainant chose to take the civil or criminal route to obtain justice, then they would need to consider the fact that they were in a position to help the complainant receive the necessary justice that they sought. While South Africa has a truly progressive constitution, the extent to which these laws actually work in practice falls far short of the ideal. At present, we find that our courts are backlogged and are failing to cope with the numerous cases brought before them as there are not enough resources to aid the court. Consequently, our court system has been called slow. Seeking the necessary, justice that one requires might take longer than necessary especially more so now due to the new harassment code, which has extended the definition of harassment. Thus, the court should expect to see a surge in cases. Be it as it may, it is imperative for our country to allocate greater resources, which will aid in alleviating the pressure placed on our current justice system.

Conclusion

The introduction of the Harassment Code should be enough motivation for employers to assess their current policies and procedures in place to address harassment in the workplace (if any) and make sure they meet the guidelines set out in the Harassment Code. A failure to take reasonable measures may result in liability for employers.

As discussed, the new code greatly expands on the definition of harassment, and consequently, this is expected to lead to a greater surge of complaints. As part of the existing legislation that seeks to protect the weaker party in an unequal relationship, the new code now goes further in seeking to protect the weaker party in an unequal relationship. It is imperative for our government to allocate greater resources to support and aid in alleviating the pressures placed on our current justice system.

If you are of the view that all internal remedies have not proven to be effective or feel that you have not received the necessary justice that is deserved, you may choose to institute civil or criminal action against the alleged offender as mentioned above. If you find yourself needing legal advice on the legal remedies available, you can contact us for help.