South Africa: New Code to Prevent Workplace Harassment

A new code has been published in South Africa which aims to prevent harassment in the workplace.

• The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (Code) has created a variety of new obligations for employers and employees.
• The Code also sets out certain guidelines in terms of employers’ policies procedures and practices related to harassment and what employers must do to deal with harassment in the workplace.
• Although the Code is a guide, the courts have in the past interpreted the Code as binding in cases of acts committed in terms of Section 60 Employment Equity Act, 1998 (EEA) and when interpreting disputes regarding unfair dismissal claims and/or unfair discrimination claims.

The Code expands on its 2015 predecessor by:

• Expanding the definition of harassment to include behaviors that slander, malign and humiliate employees; behaviors including spreading rumors maliciously, withholding work-related information and/or providing incorrect information; sabotaging or impeding work performance; boycotting or excluding employees from work-related activities; passive-aggressive or covert harassment; mobbing and online harassment.
• Making changes to the definition of sexual harassment.
• Defining a new type of harassment—that is, racial, social and ethnic origin harassment. Racial harassment is defined as unwanted conduct that is either persistent or a single incident and that is harmful, demeaning, humiliating, or creates a hostile or intimidating environment. According to the Code, “conduct that is calculated to induce submission by actual or threatened adverse consequences constitutes harassment although it is not an essential element of its definition.”

Racial harassment may include direct or indirect behavior that may in turn involve verbal or nonverbal conduct including but not limited to remarks, racist name-calling and racist cartoons, memes or innuendos.

The Code sets out a number of examples of racial harassment. The list of possible conduct amounting to racial harassment includes:

• Abusive language and racist jokes.
• Racially offensive material, be it written or visual and whether online or not.
• Racist name-calling or negative stereotyping.
• Open hostility toward a person of a specific racial or ethnic group.

The definition of the “workplace” has also been broadened to include trips undertaken for work purposes, training programs, virtual working and work-related social activities.

The Code’s application is extremely wide in that it applies to all employees and employers. When the Code refers to “employees” it includes job applicants (as defined in the EEA), volunteers, persons in training, clients, contractors, suppliers, customers and persons who have dealings with the employer. This wide definition of “employee” offers protection to a wide range of individuals in the course of their dealings with companies and employers.

The Code sets out the minimum contents that an employer’s harassment policy must contain and states that employers are under an obligation, once an incident of harassment has been reported, to investigate and consult all the relevant parties, take the necessary steps to address the complaint in accordance with the Code and the employer’s policy; and take the necessary steps to eliminate the harassment. A failure by an employer to take the necessary steps within a reasonable time may render the employer vicariously liable for the employee’s conduct.

The new Code also specifies that if the harassment results in the employee having to take sick for longer than two weeks, the employee can claim illness benefits under the Unemployment Insurance Act 2001.

Monique Jefferson is an attorney with DLA Piper in Johannesburg. © 2024 DLA Piper. All rights reserved. Reposted with permission of Lexology.