Replacing sexual harassment code of good practice

Replacing sexual harassment code of good practice

Replacing sexual harassment code of good practice

For many years, many victims of harassment were left in limbo because most harassment cases were not sexual by nature but just plain bullying. So, in the last year, the Government finally changed the code of good practice to combine all types of harassment and how to handle them into one code.

The Minister of employment and Labour released the new Code of Good Practice on the prevention and elimination of harassment in the workplace. This code replaces the code of good practice on handling sexual harassment cases in the workplace, 2005 No. 1357. 

The new code is directly linked to the Labour Relations and Basic Conditions Act and must immediately be implemented and incorporated into the disciplinary code and employment contracts of all employees in terms of Section 13. But as normal they went to the extreme and created another unenforceable piece of legislation, and I will explain why in this article.

So employers and employees beware, even a good eye-roll can now be considered harassment according to the new code of good practice!

This code is directly from the United Nations division of the International Labour Organisation and can get employers and employees into hot water faster than you can say CCMA. According to the new code, the aim is to curb all forms of harassment against women, men, LGBTQIA+ and other vulnerable persons.  The code basically expands on the already listed unfair discrimination as per Section 6(1) of the Employment Equity Act, which 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 on any other arbitrary ground. According to the code, harassment also includes physical force or power, threatened or actual, including psychological, emotional and sexual abuse against another person or against a group or community, which either result in or has a high likelihood of resulting in social injustice, economic harm, injury, death, physical and psychological harm, mal-development, or deprivation.

Everyone in public and private spaces.

The new code applies to anyone and everyone who has dealings with the business, directly or indirectly. This includes job applicants, contractors, trainees, clients, and customers of the organisation. The code goes one step further and expands the area where such contraventions may occur to anywhere an organisation’s employee works, in all public or private spaces.

The code considers the following three forms of harassment

Unwanted conduct.

Unwanted conduct as a form of harassment, whether it is violent or nonviolent, the problem now arises that each case of conduct harassment must now be assessed objectively, based on the victim’s perception as a reasonable person. This opens a whole new can of worms, and it now becomes a case of he said, she said.

Repeated serious conduct.

The second form is a bit easier to identify and manage as it refers to the repeated harassment of an employee. Repeated harassment can be of different types, so it does not have to be the same thing repeatedly. Once there is proof of repeated offences, the case is closed, and someone is unemployed.

The hostile working environment

Now, this is where things get interesting: the code refers to vertical and horizontal harassment..and it’s not what you think! Vertical harassment is from management to employee and is known as tangible, whereas horizontal is between employees roughly on the same level.  According to Section 4.7, a hostile working environment can be defined as an environment where employees are harassed physically, verbally or psychologically in the following ways;

Physical harassment.

  • Physical attacks, simulated or threatened violence.

Verbal harassment.

  • Bullying an employee

  • Threatening an employee,

  • Shaming an employee,

  • Hostile teasing of an employee,

  • Insulting an employee,

  • Constant negative judgment,

  • Criticism,

  • Racism,

  • Sexism,

  • LGBTQIA+ phobic language.

Psychological harassment.

  • Slandering or maligning an employee

  • Spreading rumours maliciously;

  • Humiliating conduct,

  • Insults or demeans an employee;

  • Withholding work-related information

  • Supplying incorrect work-related information;

  • Sabotaging or impeding the performance of work:

  • Ostracising the employee,

  • Boycotting or excluding the employee

  • Threats, fear and degradation;

  • Psychological Intolerance,

  • Intolerance of medical, disability

  • Personal circumstances Intolerance of ;

  • Surveillance with harmful intent;

  • Disciplinary or administrative sanctions

  • Demotion without justification;

  • Selective use of disciplinary proceedings

  • Illegal activities, pressuring an employee to engage in it

  • Pressuring an employee not to exercise legal rights

  • Resignation, pressuring an employee to resign.

Passive-aggressive harassment.

  • Behaving passive-aggressively

  • Passive-aggressive treatment

  • Sounding or using a passive-aggressive tone

  • Negative gossip,

  • Hostile joking at someone’s expense,

  • Sarcasm,

  • Condescending eye contact,

  • Facial expressions, or gestures,

  • Mimicking to ridicule,

  • Deliberately causing embarrassment and insecurity,

  • Invisible treatment,

  • Marginalisation,

  • Social exclusion,

  • Professional isolation,

  • Deliberate sabotage of dignity, well-being, happiness, success, and career

  • Performance.

Group harassment.

  • Group bullying an employee.

  • Mobbing and employee

  • Online and Social harassment

  • Cyberbullying.

Sexual Harassment.

The sexual harassment portion of the code remains basically the same.

As per usual, in terms of the Labour relations, Basic Conditions of Employment and Employment Equity Act, the following are expected,

• All employees must be consulted with the normal evidentiary proof required.

• All managerial staff will be required to show competence in the code.

Find more information on implementing employment equity in my other articles or visit our website to enrol for the next employment equity training course.

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Stephan du Toit

Stephan du Toit

Senior Advisor Employment Equity. Specialist in emergency Employment Equity and Labour compliance for organisations. Find more information on implementing employment equity in my other articles or visit our website to enroll for the next employment equity training course.

Are you having difficulty with employment equity? Please don't hesitate to contact me.

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