Mindel Scott

South African Labour Law Harassment

The Code requires employers to adopt a zero-tolerance attitude towards harassment. In this context, it must develop, in consultation with workers and their representatives, a harassment policy that includes harassment prevention measures and indicates what measures can be taken if necessary, including compliance with the grievance procedure (formal or informal); Disciplinary proceedings; an indication of the advice, support and advice offered to victims of harassment (in some cases, including additional sick days); provide training; ensure the confidentiality of the victim and alleged harasser during the investigation; and its policy should be communicated to employees and external parties with whom the employer deals. The four factors to consider in determining whether harassment exists remain the same: whether the harassment is based on prohibited grounds of sex, gender and/or sexual orientation; whether the sexual behaviour was undesirable or unacceptable; the nature and extent of the sexual behaviour and the effects of the sexual behaviour. Harassment in the workplace is not limited to sexual harassment, but can take many other forms. Workplace harassment is an incident that has affected a person at work, is undesirable and undesirable and has a destructive effect. In terms of labor law, examples of harassment are: If employees are unfairly discriminated against in this way, it is advisable that the employee first confronts the harasser directly in the presence of a witness and asks the harasser to stop the harassment immediately. The CCMA states that employers have an obligation to protect workers from harassment and should develop a code of conduct against harassment in consultation with workers and their representatives. Awareness and intent The incident is considered from the complainant`s perspective. This means, among other things, that harassment can still be undesirable without the harasser having had or become aware of it.

The test is whether a reasonable person would have known that the behaviour constituted harassment. It also doesn`t have to be repetitive behavior – one incident may suffice. Intent to harass is also not required, but could be an aggravating factor against the harasser. What to do about harassment in the workplace: What`s included? In general, harassment occurs when the behaviour (of an employer, colleagues, customers, etc.) is undesirable; creates a hostile work environment (e.g., physical, emotional or mental insecurity that affects the well-being or mental health of employees); and is related to one of the prohibited grounds set out in section 6 of the EEA. The test of the existence of harassment is objective: if all these factors are present, harassment is established and it is up to the harasser (employer, employee, client, etc.) to put forward one of the EEA`s defences to avoid liability (in the form of compensation, fines or even imprisonment) under the law. This includes the fact that the alleged incident does not constitute discrimination or that it was justified in the circumstances. While the EEA has always called on employers to prevent and take action against discrimination in the workplace (including harassment), this code sets out much more detail what harassment means and what their responsibilities are. There is a need to increase awareness among executives, managers, supervisors and employees in general of what is and is not permitted; a zero-tolerance attitude, supported by clear rules in this regard; Proactivity to prevent harassment and willingness to provide various forms of support to victims of harassment. The Code applies to the actions of employers, employees, customers, customers and other third parties with whom an employer does business that amounts to “harassment” within the meaning of the Code (see below) and imposes additional obligations on employers (and unions) to prevent harassment and to take disciplinary and other measures if it occurs; and providing various forms of support to victims of harassment. Vicarious liability Within the meaning of the EEA, employers are also vicariously liable (indirectly) for unlawful acts of their employees if committed in the course of and in the course of employment, unless they can prove that they have taken all reasonable steps to prevent this. Thus, if an employee is harassed in the interest of another (equal, inferior or superior) during a team building meeting in a remote location, the employer could, in principle, be held jointly and severally liable. The Code provides guidance to employers and employees on how to eliminate and prevent harassment as a form of unjust discrimination in the workplace.

In this regard, the eight main conclusions of the Code are: It covers the use of physical force or power, whether threatened or actual, against another person or against a group or community. In addition, overlapping factors such as race, religion, gender or disability increase the risk of harassment in the workplace. The publication of the Code follows South Africa`s ratification of the International Labour Organization Convention on the elimination of violence and harassment in the world of work in November 2021. The Convention commits ratifying States to adopt an inclusive, integrated and equitable approach to violence and harassment in the workplace.