Do the harassment codes go far enough?
The gazetting of the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace on 18 March 2022 saw a flurry of screaming headlines about workplace behaviour. Comments included that looking at someone or joking around could constitute harassment. Of course, in certain circumstances, and if received as such and if there was such intention, this may well be the case. However, this is not the thrust of the intention of the Codes.
Harassment and bullying are harmful. It erodes trust, morale, productivity, and wellbeing.
The Employment Equity Act 55 of 1998 (EEA) prohibits discrimination and recognises harassment as a form of discrimination if related to one of the recognised types of discrimination such as race, gender, disability, and sexual orientation.
For purposes of the EEA, the Codes have defined harassment to include unwanted conduct that impairs dignity, creates a hostile or intimidating environment or is threatening adverse consequences, and is related to one of the recognised types of discrimination.
In my view, the exclusion of harassment on an unlisted ground in the legislation is unfortunate, and in the Code, this persists.
What if the reason for the harassment or bullying does not include a discriminatory reason? What about those cases where a person is simply nasty or believes certain conduct gets better results? And this is most often someone in a position of power. There may not even be a reason – they are narcissistic, mean-spirited, or simply are emulating harmful behaviour of their bosses.
It may well be that harassment and bullying, where there is no discrimination element, should rather be dealt with separately from discrimination and fit into a separate category of offence. What ultimately a person is complaining about in these circumstances is that someone is behaving in a harmful manner towards them and/or others. The issue is not that it is discriminatory, but it is abusive. This should not save an employer from liability if they have not taken steps to eliminate it when it was brought to their attention.
Employees must also not escape consequences just because their behaviour does not constitute discrimination. Harassment and bullying are misconduct and should attract a sanction appropriate to the facts of the case.
How does one test for harassment?
The Code provides some guidance for a test for harassment (clause 4.4.5):
“Whether or not conduct constitutes harassment, should be assessed on an objective basis from the perspective of the employee who alleges harassment. The primary focus of the inquiry as to whether there has been harassment, is on the impact of the conduct on the employee. However, there may be circumstances in which the perceptions of the person harassed are not consistent with the views of a “reasonable person” in the situation of the complainant. In such circumstances, a person or employer charged with harassment may seek to establish that the complainant’s perceptions are not consistent with societal values reflective of our constitutional ethos.”
To assist in breaking this down, Tokiso suggests that companies and unions use the following four-step test to assess whether conduct amounts to harassment and bullying:
- What is the conduct and does the conduct impair the dignity of another?
- How it is being received (is it unwanted as well as hostile/intimidating/threatening)?
- How would a reasonable person receive it, considering all the circumstances of the case?
- Did the perpetrator know or reasonably know how his conduct would be received and what was his intention?
If the harassment is based on one of the listed grounds of discrimination, then it will constitute discrimination. Should it not, then in our view it still constitutes a form of harassment and is misconduct.
What should you do if there is harassment in your workplace?
There are several initiatives you can institute, all of which are provided by Tokiso:
- Review your policies and procedures on harassment, including sexual harassment.
- Conduct an independent culture assessment to determine the extent to which the culture supports harmful practices, and to implement specific interventions designed to build high-performing cultures with fair labour practices.
- Creating a language of engagement through a tool such as Insights Discovery, to which Tokiso is a distributor with licenced practitioners. This helps with individual and team effectiveness and facilitates difficult discussions that could reduce conflict.
- Hold focused, high-impact workshops with all staff on setting parameters on what is acceptable behaviour and create an environment where it is safe to report allegations of harassment.
- To mitigate risk to a company, do not ignore any corridor talk, whistleblowing or grievances/complaints about harmful behaviour in the workplace.
- Speak to us about any situation you have and the best approach to these.
- When there are allegations, conduct investigations using a methodology that is fair to all parties.
In summary, what you want to do is create a workplace built on inclusion, trust, respect, and sound labour practices. Harmful behaviour must not be tolerated in the workplace.
Tanya Venter 11 April 2022
Tanya is an Advocate of the High Court and specialises in dispute resolution and dispute system design. She has extensive experience as a mediator, arbitrator, and employment matters.
Tokisos’ webinar on bullying in the workplace, held on 30 March 2022: