16 September 2020 by Brendyn Lotz
Back in August Minister of Employment and Labour, Thulas Nxesi, published the Draft Code of Good Practice on the Prevention and Elimination of Violence and Harassment in the World of Work with a call for public participation.
As the deadline for comments – 19th October – is little more than a month away we think it best to highlight what the code seeks to do, how it plans to do that and what responsibilities employers would have given this code in its current form.
Thankfully, the folks at Webber Wentzel have summarised the full draft so that you can get an idea of what the draft looks like and the content therein.
However, we highly recommend reading the full text – which can be found here – before submitting comments.
The code itself is built off of conventions adopted by the International Labour Organisation, the South African constitution as well as the Employment Equity Act.
We should point out that the code will likely change following public consultation.
What does the minister hope to accomplish with the code?
The code seeks to prevent, eliminate and manage instances of harassment and violence in the workplace. More importantly it defines these acts as a form of unfair discrimination.
Importantly, the code defines violence and harassment as physical abuse, psychological abuse, emotional abuse and sexual abuse.
As regards more tangible violence, the code defines violence in three categories:
- Self directed violence
- Interpersonal violence
- Collective violence
Drilling down further the draft deals with:
- Sexual violence and harassment
- Racial, ethnic and social origin violence and harassment
- Workplace bullying
- Violence and harassment on account of a protected disclosure
That last point is particularly important as regards whistleblowers.
There the draft specifically states, “Employees have the right to disclose information about any criminal and other irregular conduct in the workplace, without fear of reprisals by their employer”.
There are of course processes which must be followed from the employee’s side such as making the disclosure in good faith.
Who would this code apply to?
In short, the Draft Code of Good Practice on the Prevention and Elimination of Violence and Harassment in the World of Work applies to all areas of a workplace.
Specifically, Webber Wentzel lists the following categories of people:
- Workers who employment has been terminated
- Job seekers and job applicants
- Anyone else having dealings with the organisation
More than that however the draft outlines where acts of violence and harassment could take place. If you think it’s limited to an office, you are incorrect.
- In the workplace, including public and private spaces where they are a place of work.
- In places where the worker is paid, takes a rest break or a meal, or uses sanitary, washing and changing facilities.
- During work-related trips, travel, training, events, or social activities.
- Through work-related communications, including those enabled by information and communication technologies.
- In employer -provided accommodation; and
- When commuting to and from work.
That is incredibly broad but when you sit down to think about it, it sort of has to be.
Consider for a moment an employee giving a colleague a lift to and from work and having to withstand an hour of harassment and bullying and not being able to do anything about it. This draft would give an employee the ability to raise this issue without fear of kick back from the employer.
What will employers have to do?
The draft code outlines a number of key responsibilities for employers with a view to eliminating violence and harassment at work.
There are seven guiding principles that employers should use to inform internal strategies:
- Workplaces should be free from violence and harassment;
- Working environments should be safe and without risk to the health (including physical and psychological health) of employees;
- Workplace cultures should be created where complainants (and other affected persons) can report violence and harassment without fear of reprisal and with the assurance that complaints will not be trivialised or ignored;
- Individuals at the workplace must proactively refrain from committing any acts of violence and harassment;
- Individuals at the workplace all have a role to play in creating an environment where violence and harassment is seen as unacceptable;
- Employers, employees, employer organisations and trade unions should ensure that all persons who have dealings with the employer (e.g. clients, suppliers and job applicants) are not subjected to violence and harassment; and
- Appropriate action should be taken where instances of violence and harassment occur at the workplace.
The draft code also highlights measures employers should put in place to prevent violence and harassment in the workplace.
- training for employees in the form of implementing prevention and awareness programmes;
- treatment, care and support measures to assist victims;
- privacy and consent measures; and
- policies and procedures to manage incidents.
How do you submit comments?
As mentioned, the deadline for submission of comments is 19th October.
Comments must be written and can be either posted or emailed.
For postal submissions your letter should be addressed to:
Department of Employment and Labour
Employment Equity Directorate
Attention: Innocent Makwarela
Private Bag X117
Email submissions can be directed to innocent[dot]makwarela[at]labour[dot]gov[dor]za or niresh[dot]singh[at]labour[dot]gov[dot]za.
Source: Hypertext at https://www.htxt.co.za/2020/09/16/you-have-until-october-to-comment-on-this-draft-code-about-violence-and-harassment-at-work/