What employers and mediators should know about the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace

Download a PDF booklet on the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace

Up for discussion:

■ Procedures for addressing workplace sexual harassment

■ Opportunities for mediation within the code on sexual harassment in the workplace

■ Restorative justice and workplace harmony

■ Addressing power imbalances

■ Employer responsibilities

■ Documents and policies to combat workplace sexual harassment

■ FAQ

Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace

 

The Code is a document published by the South African government outlining the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace. The document details various forms of harassment, including sexual harassment, racial and ethnic harassment, and hostile work environments, and offers procedural guidelines and policies for employers to prevent and address such issues. The document provides information about legal framework, relevant acts and their implications, and the role of various institutions, including the Commission for Conciliation, Mediation and Arbitration (CCMA). It highlights the importance of a zero-tolerance policy for all forms of workplace harassment and emphasises the employer’s responsibility in creating a safe and respectful work environment.

 

Mediation in the South African Code of Good Practice on Harassment

 

The South African Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (“the Code”) outlines various forms of harassment and provides guidelines for employers and employees on preventing and eliminating harassment. Mediation is a process where a neutral third party helps parties in a dispute to reach a mutually agreeable solution. While the Code does not explicitly mention the term “mediation”, analysing its provisions reveals several areas where mediation could be effectively used.

 

Potential areas for mediation

 

• Informal resolution: The Code encourages informal resolution of harassment complaints before proceeding to formal procedures. Mediation can be incorporated into the informal process, offering a structured and facilitated environment for the complainant and the alleged harasser to communicate, understand each other’s perspectives, and potentially reach a resolution.
• Restorative justice: The Code emphasises the impact of harassment on the employee’s dignity. Mediation, with its focus on open dialogue and understanding, aligns with the principles of restorative justice. It allows for acknowledging the harm caused, taking responsibility, and exploring ways to repair the relationship and restore a harmonious work environment.
• Workplace relationships: The Code highlights the importance of positive working relationships, stating that employers should strive to create an environment where harassment is unacceptable. Mediation can help to improve workplace relationships by providing a platform for parties to address their conflicts and find ways to work together more effectively.
• Addressing systemic issues: While individual cases of harassment need to be addressed, mediation can also help to identify and address systemic issues that contribute to a hostile work environment. For example, if mediation reveals a pattern of harassment related to a particular department or management style, the employer can take steps to address those issues and prevent future occurrences.

 

Benefits of using mediation

 

• Confidentiality: Mediation is a confidential process, which can encourage parties to be more open and honest in their communication. This can be particularly important in cases of harassment, where individuals may be hesitant to speak out for fear of retaliation or negative consequences.
• Speed and cost-effectiveness: Mediation is generally faster and less expensive than formal disciplinary processes or litigation. This can be beneficial for both the employer and the employees involved.
• Flexibility: Mediation is a flexible process that can be tailored to the specific needs of the parties involved. This allows for creative solutions that may not be possible in a more formal setting.

 

Aligning mediation with the Code

 

To effectively utilise mediation in adhering to the Code, the following steps can be considered:

• Policy inclusion: Employers should explicitly include mediation as an option for resolving harassment complaints in their workplace harassment policies.
• Training and awareness: Provide training to employees and managers on the principles of mediation and its benefits in addressing harassment.
• Access to mediators: Ensure access to qualified and impartial mediators who are experienced in handling workplace disputes, particularly those involving harassment.

 

By incorporating mediation into their approach to addressing harassment, employers can create a more positive and respectful work environment while ensuring compliance with the Code’s principles.

 

Mediation and the Code of Good Practice on Harassment

 

Mediation can assist in complying with the South African Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (“the Code”) in several ways. The Code emphasises the need for employers to take proactive steps to prevent and eliminate harassment in the workplace. Mediation, as a flexible and collaborative process, aligns well with this proactive approach.

 

• Early resolution: Mediation can help to resolve harassment complaints early on, before they escalate into formal grievances or legal proceedings. This aligns with the Code’s objective to eliminate all forms of harassment in the workplace.
• Open communication: Mediation offers a safe and structured environment for open communication between the parties involved. It allows the complainant and the alleged harasser to express their perspectives, understand each other’s viewpoints, and potentially reach a mutually agreeable resolution. This can be particularly helpful in cases of miscommunication or misunderstandings, which the Code acknowledges can contribute to harassment.
• Relationship repair: The Code emphasises the importance of maintaining a respectful and harmonious work environment. Mediation can assist in repairing damaged workplace relationships by facilitating dialogue, fostering empathy, and promoting understanding between the parties. This can be particularly beneficial in cases of harassment where the parties may need to continue working together.
• Identifying systemic issues: While the Code focuses on individual instances of harassment, it also acknowledges the role of organisational culture and practices in contributing to harassment. Mediation can help to identify systemic issues that may be contributing to a hostile work environment. For example, if multiple harassment complaints are mediated, and a pattern emerges related to a particular department or management style, the employer can take steps to address those issues and prevent future occurrences.
• Confidentiality: The Code emphasises the need for confidentiality in handling harassment complaints. Mediation, as a confidential process, can help to protect the privacy of the parties involved and encourage them to participate openly and honestly.

 

The Code recognises the Commission for Conciliation, Mediation and Arbitration (CCMA) as a key institution for resolving workplace disputes. While not explicitly mentioned in the Code, mediation services, such as those offered by the CCMA, can play a crucial role in ensuring compliance with the Code’s principles and promoting a harassment-free work environment.

 

Duties and responsibilities of employers

 

Employers in South Africa have a range of duties and responsibilities related to harassment in the workplace, as outlined in the “Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, 2022” (“the Code”). The Code aims to provide guidelines for employers and employees on preventing and eliminating all forms of harassment, including those linked to discrimination. The Code is based on the South African Constitution, which guarantees the right to dignity, equality, and fair labour practices.

Here is a list of employer responsibilities according to the Code:

• Prevent harassment: Employers are obligated to take proactive and remedial steps to prevent all forms of harassment in the workplace. They should create policies and procedures to address harassment, and provide training to employees on these policies and procedures.
• Zero tolerance: The Code recommends that employers establish a zero-tolerance policy toward harassment.
• Protect employees: Employers have a responsibility to protect employees from harassment by third parties, such as customers, clients, and suppliers.
• Investigate complaints: Employers are obligated to investigate all complaints of harassment in a timely and fair manner.
• Take action: When harassment is found to have occurred, employers are obligated to take appropriate disciplinary action against the perpetrator.
• Provide support: Employers should provide support to employees who have been harassed, such as counselling and medical care.
• Confidentiality: Employers should handle harassment complaints in a confidential manner.

 

The Code specifies that employers are obligated to educate employees on the forms of unlawful discrimination in the workplace. Harassment based on any of the prohibited grounds in Section 6(1) of the Employment Equity Act (EEA) is a form of unfair discrimination and constitutes unfair labour practice. This includes harassment based on:

• • • 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

 

The Code also outlines various forms of harassment, including:

• Sexual harassment: Sexual harassment is a form of unfair discrimination and is prohibited. The Code provides detailed guidelines on identifying and addressing sexual harassment, including quid pro quo harassment and sexual favouritism.
• Racial harassment: Racial harassment is a form of unfair discrimination and is prohibited. The Code provides detailed guidelines on identifying and addressing racial harassment, including abusive language, racist name-calling, and racially offensive written or visual material.

 

In addition to these forms of harassment, the Code recognises that other types of harassment can occur in the workplace. This includes harassment based on:

• • • Physical Appearance
    • Social Origin
    • Disability
    • Age
    • Political Persuasion

The Code emphasises that all forms of harassment are unacceptable and should not be tolerated in the workplace.

 

Mediator’s role in drafting documents and policies for harassment compliance

A mediator can play a valuable role in assisting employers with drafting the necessary documents and policies to comply with the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace. Here’s how:

• Facilitating collaborative drafting: A mediator can facilitate a collaborative process that includes representatives from different levels of the organisation, including management, employees, and trade unions, in drafting the harassment policy and procedures. This inclusive approach ensures that diverse perspectives are considered and can foster a sense of ownership and buy-in from all stakeholders.
• Neutral perspective and expertise: Mediators bring a neutral perspective and expertise in conflict resolution to the table. They can help identify potential loopholes or ambiguities in draft documents and policies, ensuring that the language is clear, concise, and aligned with the principles of the Code.
• Addressing power imbalances: The Code recognises that harassment is often an abuse of power. A mediator can help ensure that the drafting process is sensitive to power dynamics within the organisation. This includes creating mechanisms for employees to safely and confidentially raise concerns and ensuring that procedures for reporting and investigating harassment complaints are fair and impartial.
• Promoting understanding and dialogue: The drafting process itself can be an opportunity to promote understanding and dialogue about harassment in the workplace. A mediator can facilitate discussions about different forms of harassment, the impact of harassment on individuals and the organisation, and the importance of creating a respectful and inclusive work environment.
• Ensuring accessibility and clarity: The Code emphasises the need for clear and accessible policies and procedures. A mediator can help ensure that the language used in the documents is easy to understand for all employees, regardless of their background or level of education. This may include translating policies into different languages spoken within the workforce.

 

By involving a mediator in the drafting process, employers can create documents and policies that are comprehensive, effective, and compliant with the Code, ultimately contributing to a safer and more respectful workplace.

 

Here is a list of possible documents and policies that employers should have in place:

■ Harassment policy: This policy should outline the employer’s commitment to preventing and eliminating harassment in the workplace. It should define harassment and provide examples of unacceptable behaviour. The policy should also state that harassment is a form of unfair discrimination and will not be tolerated.

■ Grievance procedure: This document outlines the steps that employees can take if they believe they have been harassed. It should provide a clear and accessible process for reporting harassment, investigating complaints, and taking disciplinary action against perpetrators. The grievance procedure should be communicated to all employees.

■ Disciplinary policy: This policy should specify the range of disciplinary sanctions that may be imposed on employees found guilty of harassment. The sanctions should be proportionate to the seriousness of the harassment.

■ Confidentiality policy: This policy outlines the procedures for handling harassment complaints in a confidential manner. Confidentiality is important to protect the privacy of the parties involved and encourage employees to come forward with complaints.

 

In addition to these specific policies, employers should also consider developing other documents and procedures to support their efforts to prevent and eliminate harassment. This could include:

• Training materials: Employers should develop training materials for employees on harassment, discrimination, and related policies. The training should be provided to all employees, including managers and supervisors.
• Support programs: Employers should provide support programs for employees who have been harassed, such as counselling and medical care. Employers may also consider providing additional sick leave to employees who have been harassed.
• Collective bargaining agreements: Where applicable, employers should consult with trade unions when developing harassment policies and procedures. Collective bargaining agreements may contain provisions related to harassment, and employers should ensure that their policies and practices comply with these agreements.

 

These documents and policies should be reviewed and updated regularly to ensure they remain relevant and effective in addressing the issue of harassment in the workplace.

 

FAQ: Harassment in the Workplace

 

1. What is harassment?

The term “harassment” is not specifically defined in the Employment Equity Act (EEA). However, it is generally understood to be unwanted conduct that:

• Unwanted conduct: Involves actions that are unwelcome or uninvited by the recipient.
• Creates a hostile work environment: The conduct creates an uncomfortable or intimidating atmosphere for the recipient, making it difficult for them to perform their duties.
• Impairs dignity: The conduct undermines the recipient’s sense of self-worth and respect.
• Related to prohibited grounds: Harassment is often linked to discrimination based on protected characteristics such as race, gender, sexual orientation, etc.

 

2. What are the different types of harassment?

Harassment can manifest in various forms, including:

• Sexual harassment: Unwelcome conduct of a sexual nature, including physical, verbal, or non-verbal behaviour, that creates a hostile or offensive work environment.
• Racial/Ethnic or social origin harassment: Discrimination based on a person’s race, ethnicity, or social origin. This may involve verbal abuse, offensive jokes, racist imagery, and exclusion or marginalisation.
• Other forms: Harassment can also be based on other prohibited grounds such as gender, religion, disability, age, etc. It can include bullying, verbal abuse, psychological abuse, intimidation, and other forms of inappropriate behaviour.

 

3. What are the legal implications of harassment in the workplace?

Harassment is considered a form of unfair discrimination under the EEA and is therefore prohibited. The EEA requires employers to take proactive and remedial steps to prevent and eliminate harassment in the workplace.

Several other South African laws also address harassment:

• Constitution: The South African Constitution guarantees the right to fair labour practices and a workplace free from harassment.
• Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA): Prohibits harassment and discrimination based on various grounds.
• Labour Relations Act: Allows for disciplinary action against employees who engage in harassment and may even consider dismissal in certain cases.
• Occupational Health and Safety Act: Requires employers to provide a safe and healthy working environment, including protection from harassment and violence.
• Protected Disclosures Act: Protects employees who report harassment or other wrongdoing from being victimised.

 

4. What are the responsibilities of employers in preventing and addressing harassment?

Employers have a legal and ethical obligation to prevent and address harassment in the workplace. This includes:

• Implementing policies: Employers should have clear policies that define harassment, outline reporting procedures, and specify consequences for perpetrators.
• Training and awareness: Employers should provide regular training to employees on harassment prevention and awareness.
• Providing a safe reporting mechanism: Employees should feel safe reporting harassment without fear of retaliation.
• Investigating complaints: Employers must thoroughly investigate all complaints of harassment and take appropriate disciplinary action if necessary.
• Creating a respectful workplace culture: Employers should foster a workplace culture where respect and dignity are valued, and harassment is not tolerated.

 

5. What can an employee do if they experience harassment?

If an employee experiences harassment, they can:

• Report the harassment: Employees should report the harassment to their supervisor, human resources department, or another designated person.
• Keep records: Employees should document the harassment, including dates, times, witnesses, and details of the incident.
• Seek support: Employees can seek support from trusted colleagues, family members, or external organisations.
• Consider legal options: Employees may have legal options, such as filing a grievance or pursuing a claim with the Commission for Conciliation, Mediation and Arbitration (CCMA).

 

6. What are the possible consequences for perpetrators of harassment?

The consequences for perpetrators of harassment can range from:

• Verbal or written warnings: For minor instances or first offenses.
• Disciplinary action: This may include suspension, demotion, or transfer.
• Dismissal: For serious or repeated instances of harassment.
• Criminal charges: In some cases, harassment may constitute a criminal offense, leading to criminal prosecution.

 

7. What support is available for victims of harassment?

Victims of harassment can access various support mechanisms, including:

• Counselling and treatment: Employers should provide access to counselling and treatment services for victims of harassment.
• Support groups: External organisations offer support groups and resources for victims of harassment.
• Legal aid: Victims may be eligible for legal aid to pursue legal action against the perpetrator.

 

8. How can a workplace promote a culture of respect and prevent harassment?

Creating a respectful workplace culture that prevents harassment involves a multi-faceted approach:

• Leadership commitment: Leaders should actively promote respect and inclusivity and set clear expectations for behaviour.
• Open communication: Fostering open communication allows employees to raise concerns and feel heard.
• Regular training and awareness: Continuous training and awareness programs reinforce acceptable behaviour and reporting mechanisms.
• Diversity and inclusion initiatives: Celebrating diversity and promoting inclusivity creates a welcoming and safe environment for all.
• Zero tolerance policy: A clear “zero tolerance” policy for harassment sends a strong message that such behaviour is unacceptable.

Compiled by Eugene Opperman (B.Proc. LLB.) (LSSA L.E.A.D., ADR Network, FAMAC, NABFAM), a legal practitioner and accredited mediator.