Day 13 of 16 Days of Activism - Workplace harassment and abuse.
Compiled by: Francesca Pedrosa Rodriguez (Attorney & Legal Volunteer)
Sources: Employment Equity Act 55 of 1998, Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace.
Workplace harassment and abuse are pervasive issues in South Africa, undermining employee well-being, productivity, and the right to a safe and healthy working environment. Addressing these challenges requires awareness, proactive policies, and strong legal enforcement and it is crucial for fostering healthy, inclusive, and equitable workplaces.
What is Workplace Harassment and Abuse?
In terms of the Employment Equity Act 55 of 1998 (“EEA”), specifically section 6(3) of the act states that harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination listed in the subsection 6(1) of the EEA.
Section 6(1) of the EEA prohibits unfair discrimination directly or indirectly against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or any other arbitrary ground.
On the 18th of March 2022, the Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace was repealed and replaced by a new Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace.
The Code aims to eliminate all forms of harassment in the workplace by providing guidance on policies and procedures to be implemented in the workplace in the event of harassment taking place.
Workplace harassment involves any unwanted conduct which impairs dignity, or behaviour that demeans, intimidates, or humiliates an individual. It is any unwelcome conduct that creates a hostile or intimidating work environment. This includes verbal, physical, sexual, emotional, gender-based abuse, and racial abuse.
Harassment against employees is an abuse of power and is further the misuse of power to exploit, demean, or harm employees and can take various forms, including verbal, physical, emotional, or sexual harm.
Forms of Workplace Harassment and Abuse
As mentioned above Workplace harassment involves any unwelcome behaviour that demeans, intimidates, or humiliates an individual.
Workplace harassment is a daily occurrence in South Africa and understanding the different forms of harassment and abuse is essential in fostering a respectful, inclusive, and safe workplace for all employees.
Some of the most common examples of harassment in the workplace in South Africa are:
Sexual Harassment: Unwelcome advances, inappropriate remarks, or coercive sexual behaviour.
Bullying: this occurs when an individual is subjected to an inferior position and becomes the target of repeated negative social acts. It includes but is not limited to, slandering, criticizing, humiliating, insulting, or robbing an employee of the opportunity to gain more information in the workplace; giving false information; impeding their work; using disciplinary sanctions without a valid reason; demoting an employee without explanation; or pressuring an employee to resign.
Discrimination: Prejudice based on race, gender, age, disability, or other protected attributes.
Power Abuse: Exploitation of authority to intimidate or exploit employees.
Overloading an employee: where an employer overloads the employee in the hope that the employee will fail and constantly criticising the employee about their work performance, but at the same time not actually constructively criticising a particular aspect of the employee’s work.
Spreading of rumours or insults: this includes insults or spreading rumours relating to a person’s gender, race, disability, sexual orientation, or intelligence, in an attempt to make the person look bad in the eyes of the employer or other employees.
These examples do not include all the ways in which an employee can be harassed in the workplace and in fact, there are many different scenarios in which an employee could experience harassment.
Legal Protections in South Africa
One of the most asked questions regarding Harassment in the workplace is “What are my legal rights if I am being harassed”.
In South Africa, every employee has the right to be treated with dignity and respect in the workplace. Section 60 of the EEA states that if an employer had been informed of the harassment in the workplace but failed to take the necessary corrective steps (especially in cases where an employee is subjected to sexual harassment at the workplace), the employer will be held liable.
Below is a list of the Legal Protections afforded to employees in South Africa:
The Constitution
Protection of the right to Dignity (Section 10), Equality (Section 9), and Fair Labour Practices (Section 23).
The Constitution specifically prohibits a person from being unfairly discriminated against by anyone on the basis of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, or religion.
2. Employment Equity Act (EEA):
Prohibits workplace discrimination and harassment based on race, gender, sexual orientation, and other factors.
Mandates employers to implement measures to prevent harassment.
Labour Relations Act (LRA):
Protects employees from unfair labour practices, including harassment.
Offers recourse through the Commission for Conciliation, Mediation, and Arbitration (CCMA).
Protection from Harassment Act:
Allows victims to apply for protection orders even outside the employment relationship.
Code of Good Practice on the Handling of Sexual Harassment Cases:
Provides detailed guidelines for employers to address and prevent sexual harassment in the workplace.
What To Do If You Are Experiencing Workplace Harassment
Employers have a responsibility to protect their employees from all forms of harassment and must implement policies and procedures to address and resolve harassment issues effectively.
Harassment constitutes unfair discrimination and as such can be referred to the Commission for Conciliation, Mediation, and Arbitration (CCMA) or the Labour Court depending on the circumstances.
When addressing workplace harassment, it is crucial for employees to maintain detailed records of all incidents, including the dates and times, a description of what occurred, what was said, and the names of any witnesses present.
An employee should always start by submitting a formal complaint to their employer, providing detailed information about the incidents of harassment. If the complaint is against a manager, it should be directed to someone in a higher position of authority than the manager.
An employee who believes they are being unfairly discriminated against or harassed in the workplace should begin by following the internal policies and procedures established by their employer. This typically involves submitting a formal written grievance to the employer. If the issue remains unresolved, the employer fails to provide satisfactory assistance, or the matter cannot be resolved internally, the employee may escalate the issue by referring it to the CCMA.
If the issue remains unresolved after conciliation, it may be referred to arbitration if the employee's earnings fall below the threshold specified in the Basic Conditions of Employment Act (BCEA). For employees earning above this threshold, the matter may be adjudicated by the Labour Court. Alternatively, arbitration can proceed if both parties mutually agree to it.
It is always advisable to seek the assistance of a labour law practitioner when dealing with workplace harassment, particularly sexual harassment, as they are well-versed in the evolving legislation and the procedures required to address such cases effectively.
Impact of Workplace Harassment
On Employees: Harassment can cause anxiety, depression, burnout, and loss of confidence, often forcing employees to leave their jobs.
On Employers: Toxic work environments lead to reduced productivity, higher staff turnover, and potential legal liabilities.
Raising Awareness and Prevention
Education and Training:
Employers should regularly train staff on recognizing and addressing harassment.
Promote awareness of employees’ rights under South African law.
Clear Policies:
Develop and enforce workplace harassment policies aligned with the Code of Good Practice.
Ensure all employees are aware of the complaint process.
Support Systems:
Establish confidential reporting channels and provide access to counselling services.
Encourage peer support and allyship in the workplace.
Leadership Commitment:
Leaders must model respectful behaviour and take swift action against offenders.
Foster an inclusive culture where diversity is celebrated, and all voices are valued.
Taking Action
Employees who experience or witness harassment should:
Document incidents, including dates, times, and witnesses.
Report the behaviour to their supervisor, HR department, or trade union representative.
If unresolved, escalate the matter to external bodies like the CCMA, Labour Court, or the South African Human Rights Commission (SAHRC).
Conclusion
Workplace harassment and abuse are significant barriers to achieving dignity, equality, and respect in professional settings. By raising awareness and taking collective action, we can create environments where everyone feels safe and empowered to thrive. Let us commit to fostering workplaces free from harassment and abuse by promoting accountability, supporting survivors, and championing a culture of respect and fairness.
Together, we can ensure that no one endures the harm and injustice of workplace harassment. The fight for safer workplaces is a fight for human dignity.
#16DaysOfActivism #EndWorkplaceHarassment #SafeAndRespectfulWorkplaces
