Guest Article: Harassment in the Workplace: A Code of Good Practice

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

What is the purpose of The Code?

On the 18th of March 2022 a new Code of Good Practice was enacted on the Prevention and Elimination of Harassment in the Workplace. The 2005 Code of Good Practice was repealed. The purpose of the Code is to provide employees full protection against any form of harassment in the workplace. The Code states that any form of harassment against women, men, LGBTQIA+ and vulnerable persons in the workplace is an abuse of power. The Code applies to all employers and employees that is defined in the Employment Equity Act 1998 (EEA).

What is the definition of harassment and what type of harassment is covered in The Code?

Harassment in The Code is defined as unwanted conduct (of an employer, employee, clients, customers and third parties) that impairs dignity; and creates a hostile or intimidating work environment. If the work environment is an unsafe space for an employee, it will have a negative impact on the employee’s well-being or mental health as advocated for in The Code. The Code covers a broad range of harassment which includes sexual harassment; gender-based violence, bullying, racial, ethnic or social origin harassment and online harassment. All types of harassment is a form of unfair discrimination. Harassment may include physical abuse, psychological abuse, emotional abuse.

Who is covered by The Code?

  • The definition of perpetrator and victim is broad and includes various parties namely: employers, employees, clients, job seekers, unpaid volunteers, trainees and any third party who conducts business with the company.
  • The Formal and Informal procedures for available to a complainant
  • Section 10.7 and 10.8 of the Code provides the complainant with two procedures an informal and formal procedure.
  • An informal procedure can be viewed as a less harsh form of proceeding, where the complainant(s) or another “appropriate” person will explain to the perpetrator that their conduct is not acceptable, that it makes the complainant uncomfortable and makes it difficult for the complainant to work. Alternatively, another “appropriate” person can proceed with the same action as above, but without revealing the identity of the complainant. An employer can consider taking other informal methods when dealing with the complainant.
  • A complainant has the option to follow the company’s formal procedure even if there was no informal procedure held prior. The formal procedure follows the company’s internal procedures that is in the company’s employment policy. It is of utmost importance that the company’s policy outlines where the complainant can lodge their grievance and the procedures that that will be followed. If the internal procedure fails, the complainant can take the matter to the Commission Conciliation Mediation and Arbitration or the Bargaining Council.

What are the duties of the employer?

  • Employers have a positive duty to prevent all forms of harassment that can occur in the workplace.
  • Employers must have an attitude of zero tolerance when it pertains to harassment.
  • Employers have a duty to create a work environment where employees are respected and if an employer receives a complaint the employee should not be ignored or feel that their complaints are ignored, or unimportant.
  • Companies should create clear policies that should be communicated to the employees.

It is imperative that companies are advised by an expert who deals with workplace harassment to assist in drafting the workplace policy. A company should not be using policies they find online or generic policies but should be drafting policies that take the type of company and the needs of the company into account.

When drafting company policies, the Code of Good Practice should be used as a guide on what the company should incorporate in the policy. SLKB attorneys have experts who deal with workplace policies.

This article was brought to you by SLKB Attorneys. A member of the Austrian Business Chamber.

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