New workplace harassment code – what we need to know

On the 18 March 2022, the Minister of Employment and Labour, Thembelani Nxesi repealed the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace and replaced it with the new Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (the Code) in terms of s 54 of the Employment Equity Act 55 of 1998 (the EEA). This Code came into effect on the 18 March 2022.

The objective of the Code

The Code aims at creating safe workplaces that are free of harassment by providing guidelines to employers and employees on the elimination, prevention, and management of all forms of harassment in the workplace and in any activity linked to or arising out of work. The Code stipulates the necessary steps that the employer must take to eliminates harassment, this includes the development and implementation of policies and procedures that would contribute to the creation of harassment free workplaces.

Who does the Code apply to?

The Code applies to all employees and employers in the working environment. The potential perpetrators and victims of harassment, includes but is not limited to, employers, employees, job applicants, volunteers, persons in training including interns, apprentices, and person’s on learnership, clients, suppliers, contractors, and anyone having dealings with a business.

The Code applies in any situation in which the employee is working or related to their work this includes work related trips, such as training or events and work-related technologies and communications.

The Code, in particular, deals with the sexual harassment and racial, ethnic or social origin harassment. The Code defines ‘harassment’ as –

‘4.1.1 unwanted conduct, which impairs dignity;

4.1.2 which creates a hostile or intimidating work environment for one or more employees or … has the effect of, inducing submission by actual or threatened adverse consequences; and

4.1.3 is related to one or more grounds in respect of which discrimination is prohibited in terms of section 6(1) of the EEA’.

Types of harassment

The Code records categories of behaviour that constitute harassment in the workplace, the list includes physical, verbal, and psychological conduct. Such conducts, include but are not limited to the act of bullying, including cyberbullying, intimidation, unwanted sexual conduct, discriminating and sabotaging.

Employer’s duty

The employer has been entrusted with the duty to create a working environment that applies an attitude of zero tolerance towards harassment in the workplace. To achieve this, employers must adopt internal harassment policies and such policies must be communicated to the employees. The employer is also required to develop clear internal guidelines that clearly set out the procedures of dealing with harassment in the workplace. These guidelines should make provision for the formal and informal procedures of reporting harassment in the workplace.

Employers are required to create a safe space for employees that allows the victims of harassment to raise their complaints freely and fearlessly. Employers are obligated to attend to the employee’s harassment grievances in a manner that is effective, while also ensuring that the identities of the persons involved are kept confidential.

Failure of the employer to comply with above mentioned obligation, means they run a risk of being liable not only under our employment law but also under the general principles of vicarious liability for any misconduct committed by the employee that causes harm to others.

Nozibusiso Masondo LLM (UKZN) is a legal practitioner at
Austen Smith Attorneys in Pietermaritzburg. 

This article was first published in De Rebus in 2022 (July) DR 4.