Have you ever thought you could be held liable for self-directed violence in the workplace? That physical force or power (threatened or actual) against oneself resulting in injury, death, physical and/or psychological harm, mal-development or deprivation is a form of unfair discrimination?
A new Code of Good Practice (new Code) on the prevention and elimination of harassment in the workplace came into effect on 18 March 2022. The new Code is extremely wide in its application and could have far reaching ramifications for employers and employees. It replaces the Code of Good Practice on handling of sexual harassment cases in the workplace, as amended.
The new Code expands substantially on different types of violence that an employee may experience in the workplace and what steps employees are required to take to deal with these forms of violence.
It applies broadly to employers and employees and other persons engaged in the workplace (irrespective of their contractual status) and incidents that occur at the workplace and those that occur during the course of, linked with or arising out of work.
The new Code regards violence and harassment in the workplace as a form of unfair discrimination. Violence and harassment include physical, psychological, emotional and sexual abuse. It also includes the use of physical force or power (threatened or actual) against oneself, another person or against a group or community that either results in (or has a high likelihood of resulting in) injury, death, physical and/or psychological harm, mal-development or deprivation.
It therefore recognises three broad categories of violence within the workplace, self-directed violence, interpersonal violence and collective violence.
The main forms of violence and harassment listed in the new Code are sexual violence and harassment, racial ethnic and social origin violence and harassment, and workplace bullying and violence and harassment on account of a protective disclosure.
It is important to note that harassment includes any unwanted conduct that creates a hostile working environment and an employer may be held liable for the acts of their employees. Single incidents may be enough to establish that there was harassment and employers are required to adopt a zero-tolerance approach to any form of harassment.
The new Code provides a few guiding principles for employers to consider and use to steer their internal strategies and prevent and eliminate violence and harassment at work:
workplaces should be free from violence and harassment;
working environments should be safe and without risk to the health (including physical and psychological health) of employees;
a workplace culture should be created where complainants (and other affected persons) can report violence and harassment without fear of reprisal and with the assurance that complaints will not be trivialised or ignored;
individuals at the workplace must proactively refrain from committing any acts of violence and harassment. In this regard, individuals at the workplace all have a role to play in creating an environment where violence and harassment is seen as unacceptable;
employers, employees, employer organisations and the trade unions should ensure that all persons who have dealings with employers are not subjected to violence and harassment;
appropriate action should be taken where instances of violence and harassment occur at the workplace and such instances are brought to the attention of the employer.
As a result of the new Code employer should implement some practical steps which would include, inter alia:
providing training for employees on the new Code in the form of implementing prevention and awareness programmes against violence and harassment in the workplace;
implement treatment, care and support measures to assist an employee who is the subject of violence or harassment in the workplace;
implement privacy and consent measures; and
implement policies and procedures to manage violence and harassment in the workplace and ensure that they are compliant with the new Code.
It is important that employers understand that they are obliged to investigate complaints related to any violence and harassment in the workplace. If an employer fails to do so, they may be held liable for damages under Section 60 of the Employment Equity Act.
Accordingly, should any employers be faced with claims of violence or harassment in the workplace, they should seek guidance from a labour specialist to ensure that these complaints are dealt with appropriately and in line with the new Code.
