On 18 March 2022, Minister Thembelani Nxesi published the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace in the Government Gazette Nr. 46056. The Minister repealed the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace and replaced it with the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace.
This is the second of two (SA)UEO articles on the subject and deals with the practical application of this legislation for employers in terms of compliance and existing legal precedence in the South African courts. The first part covered the basis for workplace harassment and the legal frameworks of the new Code. [click here for Part 1]
The four pillars of compliance
Compliance, compliance, compliance, and… compliance.
But seriously, every owner or employer needs to ensure that they have done everything in their power to safeguard their business interests against the consequences of the Code of Good Practice. With the renewed focus directed at harassment in the broader context, the age-old practice of turning a blind eye to such matters until they resolve themselves has become the worst possible policy to employ.
To be thoroughly prepared for the changing paradigm of the new Code, the (SA)UEO recommends that employers employ a four-pillar compliance strategy:
1. Risk Assessment
If you do not know what your risks are, how will you know which policies to develop in mitigation?
It is always better to conduct a proper risk scenario assessment in advance and proactively prepare a plan, than to respond to risks under pressure as events unfold. Please refer to our (SA)UEO Risk Assessment templates and customise them according to your unique needs. This will form the foundation for the steps to follow.
2. Policy Review
If you do not know if your policies are compliant, how will you know what actions to engage in response?
With a Risk Assessment in place, you must then review all company policies related to harassment and update them accordingly. Be sure to amend the policies to make provision for the expanded definitions of harassment, the workplace, and role players. Please refer to our (SA)UEO Policy template and customise it according to your unique needs.
Remember that there are also more subtle elements such as gender-specific pronouns, to consider. If your policy language identifies perpetrators or victims of harassment as definitively male or female, then it will need to be amended because this is in violation of the specific provision made for the LGBTQIA+ groups.
Trade unions and employer organisations also have a role to play regarding harassment. Both must now create awareness among their members. If they are actively engaged within your organisation, they are now potential allies in combatting harassment. Ask if they have amended their policies in line with the new Code.
3. Training and Awareness
If you have not made provision for adequate training, how will you know whether your people are prepared?
Conduct training programmes starting with a comprehensive induction and encourage an ongoing company culture of awareness that goes beyond a once-off event to tick your compliance checkbox.
Aim for a balanced mix of formal, structured events such as workshops or seminars and devoting weekly informal, unstructured time during staff meetings. Encourage the positive over the negative. Motivate by sharing success stories, like kindness displayed by one staff member to another during the past week and how this touched you, for example. Avoid fixating on failures. Deal with them quickly according to policy, if and when necessary.
People respond to positivity. Three to five minutes a week can change a workplace forever.
4. Establish Resources
If you haven’t dedicated resources to deal with harassment issues, how will you maintain oversight and management?
Appoint a designated person in the company to assume overall responsibility for the planning and implementation of company harassment policies. Depending on the size of the company, this person may have to appoint a task team to deal with these matters.
If so, the task team will most likely become the committee that oversees the amendments to company policies and drafts the appropriate process documents for dealing with harassment cases. This team will also allocate the resources made available to victims of harassment such as access to trauma counselling or arranging for medical assistance. If additional sick leave is granted to a harassment victim, the team will have to plan for the necessary human resources to stand in for the duties normally carried out by the victim. Tasks will need to be delegated to other staff members or temporary staff may need to be hired.
All these have budgetary implications, and the team will have to negotiate with the financial department to obtain the required funds.
Key issues in implementation
Sweeping changes in the workplace are often difficult to achieve without push-back or losing momentum. Implementing the new Code will likely trigger a number of both positive and negative responses from management and staff.
Vulnerable groups will welcome the changes with open arms, while die-hard bullies and passive-aggressive perpetrators are unlikely to change their behaviour in any meaningful way on their own. Either way it has become the responsibility of the employer to deliver a safe and secure workspace to all without hyper-sensitising everyone to the point of overcompensation.
Dealing with the Lack of Clarity
The new scope and definitions brought into play can be difficult to interpret in black and white terms. They are very broad, and vague enough to make the appropriate action difficult to establish.
For example, members of LGBTQIA+ communities that have been stigmatised in the past may be particularly sensitive to certain gestures, actions, words, and non-verbal language that others may not even be aware of. These difference experiences and perceptions open the door to interpretation in vastly different ways.
In time, the courts will resolve these and deliver clarity, but for now the best approach is for employers to be as definitive as possible in their policy revisions.
Emergence of False Claims
Given the expanded scope of the new Code, employees may come forth with false claims of workplace harassment.
For example, two employees are both in line for the same promotion. One tells their supervisor that the other rolled their eyes at them during the previous staff meeting and gets the promotion. Making false allegations is a serious issue, and difficult to prove otherwise. Perpetrators can get away scot-free. It happens in everything from child custody and divorces – to GBV cases, so to expect anything less is the workplace is naïve.
This is especially true when the accuser is part of a protected group, and the accused is assumed to be guilty on the basis that they are not.
Case Law Examples
The applicant was the first black man to be stationed at Brixton in the history of the station and, ultimately, the living and working conditions were mired in conflict. His family joined him in living on the premises of the residence at the station.
Petitions were signed to remove the applicant from the premises. Fights broke out. A sjambok-wielding assailant was stabbed in the throat with a kitchen knife. The K-word was used in abundance. Eventually this forced him to resign.
The key point of interest is that the bulk of the applicant’s complaint was not directly rooted in work-related matters. The alleged racism and abuse towards him and his family took place in the residence where they stayed. This is where the families of the perpetrators, including their children, hurled racist insults toward the Biggar family.
Superiors involved were found to have failed in addressing the issues seriously enough and failed to take adequate steps in response. The fact that the discrimination took place outside of the direct control of the employer and concerned third parties who were also outside the direct control of the employer, was not a defence for its inaction.
Furthermore, the court also found that he was unfairly discriminated against because disciplinary actions were taken solely against him and excluded white colleagues who were also involved in the fights.
The applicant was awarded compensation equal to a year’s salary.
The applicant, also a firefighter, lodged a grievance against the then acting divisional chief claiming that he had sexually harassed her soon after receiving a caution for contravening the Uniform Policy with a dreadlock hairstyle.
She sought orders suspending the chief, and compensation for the respondent’s gross mismanagement of the dispute.
The key point of interest is that the applicant’s complaint was rooted in the allegation of sexual harassment and the determination of the truth since the applicant had a clear motive for falsely accusing her superior, who had denied those allegations.
The Commissioner noted that the applicant initially lodged a grievance against the chief about his insistence that she cut her hair. Only after that did she accuse the chief of making a crude sexual proposal to her.
The allegation was without foundation for several reasons. Firstly, she has previously made similar allegations against another manager, under similar disciplinary circumstances. Secondly, she could not produce the text messages she claimed the chief sent her. And finally, her close friend denied that she ever mentioned this to him..
Her habit of accusing others increased the probability that the allegation was false, and the application was dismissed.
Ultimately, the new amendments to the Code of Good Practice have expanded much of the key definitions around harassment and placed an increased burden of compliance on the employer, but it is not without merit. Workplace harassment is a critical issue that all employers need to take more seriously in a global environment which is increasingly aware of discrimination. Whether these sweeping new definitions and obligations can be realistically met in terms of both our workplaces and our courts remains to be seen.
As always, it is a complex legal landscape and the (SA)UEO recommends that organisations and employers proactively seek guidance from qualified practitioners to achieve compliance and mitigate the potential risks.
It is certainly cheaper and less damaging to prevent a crisis from happening than to mop up afterwards.
For expert advice and assistance with identifying critical risks and ensuring compliance in your specific workplace and industry, contact the General Secretary of (SA)UEO at firstname.lastname@example.org.