Workplace Harassment - Casting the Net Wider

March 18, 2022, heralded the amended Code of Good Practice addressing the critical issue of the Prevention and Elimination of Harassment in the Workplace. The Code effectively extends its reach to include a multiplicity of scenarios deemed to constitute harassment in the working environment.

Demonstration of passive-aggressive behaviour, bullying, ostracising, cyberbullying, career sabotage, and racist, sexist or LGBTQIA+-phobic language has now been added to the ‘list’ of criteria deemed to be forms of harassment at the workplace.

Whilst, hitherto fore, there has not been a precise concept of bullying in the workplace, the amended code now provides that any form of harassment must be dealt with by means of an investigation and the employer has to embark on either a formal or informal disciplinary process. Perpetrators and victims alike now include anyone working at or visiting the workplace premises.

The new code encourages employers to adopt a zero-tolerance attitude toward harassment at the workplace. It places far more responsibility on employers to educate employees about what harassment is and, perhaps more importantly, how to prevent and/ or avoid any form of harassment.

"Harassment is a form of unfair discrimination in terms of the Employment Equity Act [EEA], which makes provision for the issuing of Codes of Good Practice intended to provide employers with guidelines. The workplace is becoming more diverse, leading to an increase in workplace and corporate bullying. As such, there was a need for wider protection of employees when it comes to harassment," explained labour law expert Sunil Hansjee of Cox Yeats.

Employers who fail to take adequate steps to eliminate harassment within a reasonable period of time potentially render themselves vicariously liable for damages even in the event of the harassment taking the form of a single, isolated, or once-off incident.

A recent high court judgment found an employer and harasser jointly and severally liable to pay a plaintiff R4 million in damages as a result of their failure to deal with a case of sexual harassment adequately and decisively at the workplace.

"Employers should develop clear procedures to deal with harassment which enables the resolution of problems in a gender-sensitive, confidential, efficient, and effective manner. When an employee has reported an alleged incident of harassment or laid a complaint, the employer is obliged to investigate the allegation of harassment and advise the complainant of the procedures available to deal with the harassment," advises Hansjee.

The test for harassment takes into account whether it was unwanted, the nature thereof and the impact on the victim.

"It is no longer acceptable to say 'I did not mean it' or 'the person misunderstood'. The code is now extremely broad and takes how the complainant experienced the behaviour into account," says Hedda Schensema, an employment law expert at Cliffe Dekker Hofmeyr. "We often hear 'there is a bully among us, but he performs very well and gets things done'. The amended code, however, makes bullying no longer acceptable."

As for harassment on the basis of race, Bonagni Masuku, another employment law expert at Cliffe Dekker Hofmeyr, said the test is "anything said or done in the context of the workplace that is reasonably capable to convey a racist meaning to a reasonable person on a balance of probabilities". It is, therefore, not only an objective test but also broad in nature.

Types of harassment according to the Code of Good Practice

• Physical harassment includes physical attacks, simulated, or threatened violence, or gestures (such as raising a fist as if to strike a person or throwing objects near a person).

• Verbal bullying may include threats, shaming, hostile teasing, insults, constant negative judgement, and criticism, or racist, sexist or LGBTQIA+-phobic language.

• Psychological harassment in the workplace may be associated with emotional abuse and involves behaviour that has serious negative psychological consequences for the complainant/s such as is often the case with verbal abuse, bullying and mobbing.

• Slandering or maligning an employee or spreading malicious rumours.

• Conduct that humiliates, insults, or demeans an employee.

• Withholding work-related information or supplying incorrect information.

• Sabotaging or impeding the performance of work.

• Ostracising, boycotting, or excluding the employee from work or work-related activities.

• Persecution such as threats, and the inspiration of fear and degradation.

• Intolerance of psychological, medical disability or personal circumstances.

• Surveillance of an employee without their knowledge and with harmful intent.

• Use of disciplinary or administrative sanctions without objective cause, explanation, or efforts to problem solve.

• Demotion without justification.

• Abuse, or selective use of, disciplinary proceedings.

• Pressuring an employee to engage in illegal activities or not to exercise their legal rights.

• Pressuring an employee to resign.

It is strongly recommended that employers have a well-articulated Harassment Policy and procedure in place at the workplace, and that staff at all levels are informed about and educated on the policy and procedure.

The recently amended Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace should be used as a framework/guideline for such a Harassment Policy.

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