The Minister of Employment and Labour (Thembelani Waltermade Nxesi) published the Draft Code of Good Practice on the Prevention and Elimination of Violence and Harassment in the World of Work for public comment from the date of publication. Written comments on this draft should be submitted within 60 days of the publication of the notice in the Gazette.
This Code is intended to address the prevention, elimination and management of Violence and Harassment that pervade the world of work noting that South African law regards Violence and Harassment as a form of unfair discrimination.
Violence and harassment against women, men and LGBTQIA + persons in the world of work, is an abuse of power. It particularly affect workers in the most vulnerable work situations, who have poor access to labour rights such as freedom of association, collective bargaining, decent work, non-discriminatory practices and access to justice.
Some of the Definitions in the Code of Good Practice which are of note will now include:
- Bullying: means unwanted conduct in the workplace, which is persistent or a single incident, which is serious and insults, demeans, humiliates, lowers self-esteem or self-confidence or creates a hostile or intimidating environment.
- Cyber Bullying: refers to the inappropriate use of technology, expression of psychological and sexual Violence and Harassment through email, text, cartoons, memes and web posts or any other form of online communication or electronic technology which has the same effect as conventional bullying.
- Domestic Violence and Harassment means intimate partner violence, family violence or domestic abuse, and includes physical, sexual, psychological, and economic violence as well as coercive control carried out by an intimate partner.
- Mobbing is A form of harassment by a group of people targeted at an individual.
- Online Violence includes any act of violence and harassment that is committed, assisted or aggravated in part or fully by the use of Information and Communications Technology (ICT), such as mobile phones and smartphones, the internet, social media platforms or email.
- Psychological Violence and Harassment refers to the prejudicial effects such conduct has on the psychological integrity and well-being of the complainant.
- Sexual Gender-based Violence and Harassment refers to any sexual act or unwanted sexual comments, verbal or non-verbal advances, attention, proposition, coercion, threats of harm or physical force, by any person regardless of their relationship to the complainant(s) in any setting.
- Sexual Harassment means unwelcome conduct of a sexual nature that violates the rights of an employee, considering all the following factors whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation; whether the sexual conduct was unwelcome; the nature and extent of the sexual conduct; and the impact of the sexual conduct on the employee.
- Violence and Harassment related to Parental responsibility means a form of violence and harassment because of pregnancy, childbirth, surrogacy, maternity or parental leave, parental responsibility or a medical condition related to pregnancy or childbirth or surrogacy, or a worker because of family responsibilities.
- Factors which the Code requires be considered in Sexual Violence and Harassment:
- What is ynwelcome conduct, which speaks to various ways an employee may indicate that the conduct is unwelcome, including non-verbal conduct (Walking Away, Ignoring the Conduct, Failing to Respond to the Conduct, etc.), noting that previous participation in conduct does not mean it is still permissible and manners in which a victim may seek assistance (Discussing the issue with management, HR, friends and family).
- The Nature and extent of the conduct, noting that even a single instance may constitute sexual violence and/or harassment.
- The Impact of the conduct on the victim, where the impact on the dignity of the Employee should be considered along with psychological and physical risks.
- The suggested test which must be applied should consider how would the reasonable person have reacted in the circumstances and notes that sexual attention becomes sexual violence and harassment when: The behaviour is persistent, although single incidents can constitute sexual harassment; The Victim has made it clear that the behaviour is considered offensive; and/or The perpetrator knows or ought to have known that the behaviour is regarded as unacceptable. When it comes to Racial Violence and Harassment, it should also be considered
- Factors to be considered in Racial Violence and Harassment include, whether the language or conduct complained of is abusive, impairs the dignity of the complainant, directed at a particular employee or employees, level of malice, extend and degree of abuse or impairment to dignity and impact of conduct.
- The suggested test which must be applied should consider an objective assessment with reference to the reaction of the normal or reasonable person as well as establishing racial violence and harassment based on race or ethnic origin. it has to be established on a balance of probabilities that the conduct complained of, was: unwanted, persistent or serious, demeaned, impaired dignity, humiliated, created a hostile or intimidating environment; calculated to induce submission by actual or threatened adverse consequences; related to race, ethnic origin, or characteristic with such group; whether perpetrator would have spoken the words in a manner complained of; how the perpetrator treats other persons not of the complainant’s racial group or ethnic origin; impact of the violence and harassment; and whether the language or conduct is directed at a particular person and is insulting, abusive and/or derogatory.
- Employers will be required to:
- Take proactive and remedial steps to prevent all forms of Violence and Harassment.
- Establish clear rules, policies and procedures in place prohibiting all forms of Violence and Harassment and other forms of unfair discrimination.
- Ensure that policies are clear that all forms of Violence and Harassment are forms of unfair discrimination or violation of dignity, health and safety which are regarded as a very serious form of misconduct which may result in a dismissal.
- Make sure that policies and procedures provide clear understanding of the employer’s position regarding the prevention and elimination of the various forms of Violence and Harassment.
- Ensure the policy and procedures are communicated effectively to all employees.
- Treatment, Care and Support
- Treatment, care and support programmes must be in place.
- Appropriate measures must be taken to mitigate the impact of domestic violence in the workplace.
- Training and Awareness Programs need to be implemented with a view of including all stakeholders (Employers, Employees and Trade Unions) in order to effectively implement appropriate integrated gender sensitive strategies, including training and awareness programmes for the elimination of Violence and Harassment in the workplace.
- Procedures in managing Violence and Awareness should be developed and implemented which comply with the Code of Good Practice and must include both formal and informal procedures.
- Monitoring and Evaluation systems should be implemented to provide information in collaboration with Employees.
From the above it is clear that Government is taking Harassment and Violence seriously and it is therefore important that you, as the Employer ensure that you implement the necessary strategies and policies as required in terms of the Code of Good Practice.
We at HR City have already developed an exhaustive policy in this regard and can assist you and your business in complying with these requirements.