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

    On the 18 March 2022 the ‘new’ Code of Good Practice on the Prevention and Elimination of Harassment in the workplace REPEALED the previous Codes.

    WHAT CONSTITUTES HARASSMENT?

    The Code provides substantive clarity on what harassment is. Unwanted conduct which impairs the dignity, which creates a hostile or intimidating work environment for one or more employees, or is calculated to, or that effect of inducing submission by actual or threatened adverse consequences and is related to one or more grounds in which discrimination is prohibited in terms of section 6(1) of the Employment Equity Act 55 of 1998.

    Procedurally, the Code makes it clear that employers MUST take “proactive remedial steps to prevent all forms of harassment in the workplace”.

    PROCEDURAL OBLIGATION OF EMPLOYERS

    Procedurally, the Code makes it clear that employers MUST take “proactive remedial steps to prevent all forms of harassment in the workplace”.

    • Implement a harassment policy
    • Communicate the policy to staff/employees
    • Develop clear procedures to deal with harassment
    • Clarify the employer’s obligations once an allegation has been reported
    • Formal vs Informal process vs Disciplinary action
    • Orientation/Induction & training
    • NB: CONFIDENTIALITY

    Leave considerations: Additional paid sick leave – f the employee has been ill for longer than two weeks, a claim in terms of sec 20 of the Unemployment Insurance Act 2011 can be made.

    HARASSMENT & BULLYING VS SEXUAL HARASSMENT

    SEXUAL HARASSMENT

    • Sexual advances
    • Request for sexual favors in return for benefits
    • Verbal abuse with sexual overtones
    • Remarks or gestures in respect of a person’s appearance, body, or clothing
    • Physical contact and or sexual assault
    • Staring, whistling, or obscene gestures
    • Display or sharing of offensive or explicit materials e.g. photos, pictures, or magazines
    • Continued pressure to go on a date or for sexual favors
    • Letters, email, text messages, or calls of a sexual nature

    HARASSMENT & BULLYING

    • Unwelcome conduct that impairs dignity
    • Unwelcome conduct that creates a hostile and or intimidating working environment
    • Conduct related to the EEA sec 6(1) listed grounds
    • Harassment includes: Violence, physical abuse, psychological abuse, emotional abuse, sexual abuse, gender-based abuse, or racial abuse
    • Use of physical force or power either threatened or actual against a person/group/community
    • Bullying: abuse of power to instill fear or fear of injury or repeated conduct that creates discomfort for a person
    • Passive-aggressive conduct: negative gossip, negative joking, causing embarrassment, condescending eye contact, marginalization and deliberate sabotage of the person’s dignity.
    • ONLINE HARASSMENT / CYBER BULLYING

    NB factors to consider:

    • Once off incidents seldom constitute harassment but it can
    • The Code stipulates that the conduct is usually ongoing
    • The perception of the ‘victim’ is taken into account, not the alleged perpetrator’s intention

    NB: The assessment remains an objective assessment.
    NB: From the perspective of the ‘victim’
    NB: The reasonable person test will be applied
    NB: view of the ‘victim’ vs the view of the ‘reasonable person’ in the context

    REPORTING: Without reporting, very little can be done – NB: CONFIDENTIALITY

    INFORMAL PROCESS:

    • The ‘victim’ feels that an informal facilitated conversation can resolve the issue (COUNSELING)
    • The conciliation may result in a finding that a more serious process is required
    • Occupation Health and Safety obligations

    FORMAL PROCESS:

    • The nature of the complaint is of serious nature to the extent that an informal process is inadequate or inappropriate
    • Occupation Health and Safety obligations
    • DISCIPLINARY STEPS: warnings/transfer/demotion/dismissal
    • Criminal charge/case
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