Workplace Harassment: The new code and what you need to know

Introduction

As a subject of concern, workplace harassment might seem far-fetched for small to medium, or even growing businesses. However, if productivity, profits, and success are some of the words you would like to hear in relation to your business, it’s worthwhile to understand how workplace harassment can affect your business.

A new Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace was recently introduced by our government, as an updated guideline to employers.

Let’s briefly look at the impact of this new Code, why it is important for you, as an employer, to have updated harassment policies in place and why your employees should be protected from various forms of harassment.

What are Codes of Good Practice?

Before we dive into the nitty gritty of the new Code on Harassment in the Workplace, it is vital to understand the nature and legal status of the Codes of Good Practices currently in existence in South Africa.

Essentially, Codes of Good Practice set out some guidelines on best practices for employers to follow when they are involved with labour matters or disputes. The keyword here is “guidelines”. 

So, what does this actually mean? The Codes are not legislation and therefore not binding on employers. In other words, employers are not legally required to follow them (do so at your own discretion).  

Regardless of the above, arbitrators and Labour Court Judges are still required to take all Codes of Good Practice into account, before making decisions on a labour related matter.

That being said, employers may depart from the guidelines in the Codes of Good Practice, as long as they are able to justify their departure from such guidelines. Employers should bear in mind that it is not easy or even practical to justify a departure to an arbitrator or Judge. Frankly speaking, sticking to the guidelines would be your best and most inexpensive option. Proving the departure before an arbitrator or Judge could cost you a pretty penny.

Let’s talk about the new Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace

The main objectives of the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace are:

• to eliminate all forms of harassment in the workplace and in any activity linked to or arising out of work; and
• to provide guidelines:
  • to employers and employees on the prevention and elimination of all forms of harassment as a form of unfair discrimination, in the workplace; and
  • on human resources policies, procedures and practices related to harassment and appropriate procedures to deal with harassment and prevent its recurrence.

The code now identifies the steps that employers must take to eliminate harassment. This includes the development and implementation of policies, procedures and practices that will lead to a workplace free of harassment and a workplace where employers and employees respect one another’s integrity, dignity, privacy, and equality.

In addition to the above, the code protects employees from harassment stemming from their racial, ethnic or social origin. It also includes several types of harassment, such as passive-aggressive or covert harassment, and mobbing.

Covet harassment is a terrible thing for the culture of a company and can be tough to deal with without serious intervention. The covert nature makes it somewhat difficult to address although its negative impact will definitely affect your employees.

Why should an employer be concerned about workplace harassment?

If you are keen on getting your business on track to being successful and profitable, you should be concerned about workplace harassment. Let’s face it, one of the main ingredients to that success is indeed your employees. If harassment exists in your workplace, not only will you lose valuable employees, but it will also ultimately run your business into the ground.  Your employees after all are the ones who build and carry the culture of your company.

Notwithstanding the above, your employees of course have a contractual duty to work competently in terms of their employment contracts. However, human beings are emotional beings, and they will invariably be moved by emotions first before they are moved by contractual terms.

So, as their employer, it would be best to understand the factors that affect your employees’ emotional well-being, which ultimately affects how they do their work.

Let’s look at some factors that can affect your employees’ duty to work competently:

• poor working conditions;
• distrust between staff and management;
• no real policies in place; and
• a hostile working environment.

These factors are not exhaustive and there may be other factors that negatively affect your employees’ duty to perform competently. Whatever those factors may be , they certainly have a negative impact on your employees, which include, but are not limited to the following:

• poor morale;
• producing sub-standard work;
• burnout;
• demotivation; and
• mental health deterioration.

What causes your employees to feel like this way? To list a few obvious causes: workplace harassment, bullying, inequality, non-recognition for the work done, or disproportional pay.

In my experience as a Labour Lawyer, I can certainly confirm that while earning a good salary with benefits is important to employees, general happiness or job satisfaction in the workplace ranks equally with a good salary. People don’t leave jobs; they leave bad bosses (and toxic workplaces).  

Most employees who have approached me for legal advice in respect of mutual separation agreements have cited workplace harassment as the reason for terminating their employment contracts.

A few years ago, one of our clients approached us because they wanted to terminate one of their senior employees. He was found to be incompatible with the team that he was meant to be leading. At the heart of this incompatibility was his inability to inspire his team to perform competently, because he constantly subjected them to harassment and all sorts of abuse. The same team leader was also responsible for creating a hostile working environment due to his racially insensitive comments and jokes. And as a result, one of his subordinates resigned. This exposed the employer to a risk of being taken to the CCMA for constructive dismissal.

The above is only just one example demonstrating the importance of ensuring that you, as an employer, maintain a working environment free from harassment.

When it comes to sexual harassment coupled with other forms of harassment, you, as the employer, could be held vicariously liable if you fail to proactively put measures and policies in place to protect your employees from harassment.

In the case of “PE” v Ikhwezi Municipality and Another [2016] JOL 35606 (ECG), the High Court found that the was employer vicariously liable for a claim of damages amounting to R4 028 416,80 (four million, twenty-eight thousand, four hundred and sixteen Rand eighty cents) due to fact that one of their employees was sexual harassed and assaulted in the workplace. If this isn’t a good enough reason for you to have a solid harassment policy in place, then I don’t know what is.

What are the advantages of having a harassment policy in your workplace?

• It maintains a harmonious workplace, making it conducive for productivity.
• There will be a massive reduction in distractive mental health issues that are invariably caused by workplace harassment. Happy employees mean healthy employees.
• Employees, including managers are aware of action or conduct that constitutes harassment and that such conduct is prohibited.
• Employees are aware of their rights where they may find themselves being subjected to harassment and they are also aware of where to report incidents of harassment.
• As an employer, you will have a clearly set out procedure for handling incidents of harassment. Therefore, you will be able to quickly jump into action when dealing with workplace harassment.
• When correct procedures are in place and followed, you will be able to avoid being held vicariously liable for acts of harassment against employees particularly in cases where you have a duty to prevent and eliminate harassment in the workplace.
• Where you have a clearly set out process for handling harassment matters and do follow such a process, you are protected from possible challenges by perpetrators who you may have disciplined for acts of harassment.

What do you risk by not having a harassment policy in place?

• Firstly, it can cause a lot of confusion and uncertainty with your employees regarding the type of acts that constitutes harassment. It’s also an inconvenience when you have to prove that an employee was aware that their conduct constitutes harassment, particularly in cases where the conduct complained of is not a clear incident of harassment.
• Secondly, it may be difficult for you to follow any processes prescribed by the code of good practice where these are not specifically set out in a policy document that is clearly communicated to your employees.
• Thirdly, it may be difficult for you to follow due process with regards to reporting and the handling of incidents of harassment without clear guidelines.
• Fourthly, you may be exposed to a risk of vicarious liability in the event of one of your employees being harassed.
• Last, but not least, you are most likely to be exposed to the risk of costly and/or disruptive challenges in the case of a dismissal of an employee accused of harassment without a policy document laying out the procedure for dealing with harassment.

Conclusion

To sum it all up, you should have a harassment policy in place – protect your employees, your business and yourself.

If you want a business that promotes a good working environment and happy employees, it is crucial that you do what is absolutely necessary to keep your employees motivated, empowered, and protected from incidents that could potentially prevent them from being the best versions of themselves at work. If you are unsure of how to go about doing so, contact us for assistance!

– Sudden Mutsengi

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