This code has been in development for some years. The Employment Equity Act, since its promulgation in 1999 has defined harassment as a form of discrimination, particularly if the harassment can be linked to the forms of discrimination listed in the EEA, i.e.
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.
In 2014, they added “or on any other arbitrary ground” to this list
What the Employment Equity Act did not do was define harassment. They did define Sexual Harassment in a Code, which actually was published prior to the promulgation of the EEA as part of the Labour Relations Act. This code does define harassment and gives it a very wide definition, and it also defines separately racial, ethnic or social origin harassment.
Harassment is defined in the code as:
- Unwanted conduct which impairs dignity
- Which creates a hostile or intimidating work environment
- It is related to one or more grounds in respect of which discrimination is prohibited in terms of the EEA.
Harassment includes violence, physical abuse, psychological abuse, emotional abuse, sexual abuse, gender-based abuse and racial abuse.
Types of harassment described in the code include:
- Physical attacks including:
- Threatened or simulated violence (raising a fist or throwing objects near a person)
- Verbal bullying including.
- hostile teasing
- constant negative judgement
- racist sexist or LGBTQIA phobic language
- Psychological harassment
- Passive Aggressive or covert harassment includes
- Negative gossip
- Negative joking at someone’s expense
- Condescending eye contact
- Facial expression or gestures
- Mimicking to ridicule
- Deliberately causing embarrassment and insecurity
- Invisible treatment
- Social exclusion
- Professional isolation
- Deliberately sabotaging someone’s dignity, well-being, happiness success and their career performance
- Mobbing by a group of people targeted at one or more individuals
- Online harassment or cyberbullying using any of the communications technologies
Examples of harassment include, but are not limited to:
- Slandering, maligning or spreading rumours maliciously
- Conduct which humiliates, insults or demeans an employee
- Withholding work-related information or supplying incorrect information.
- Sabotaging or impeding the performance of work
- Ostracising, boycotting or excluding the employee from work or work-related activities
- Persecution such as threats and the inducing of fear and degradation
- Intolerance of medical, disability, or personal circumstance
- Surveillance of an employee without their knowledge and with harmful intent
- Use of disciplinary or administrative sanctions without objective cause, explanation, or efforts to problem-solving
- Demotion without justification
- Abuse or selective use of disciplinary proceedings
- Pressuring an employee to engage in illegal activities or not to exercise legal rights
- Pressuring an employee to resign
The code distinguishes between vertical harassment (the abuse of an employee by their manager) and horizontal harassment, (the abuse of an employee by another employee in the same position or level).
The process for investigating incidents of harassment is outlined in both this code and the code for sexual harassment, and failure to do so could lead to the company being taken to the CCMA for failing to protect the employee and the perpetrator facing both criminal and civil proceedings.
The code requires all companies to adopt a policy for harassment in the workplace and to ensure that all employees are made aware of the policy and the code and the potential consequences to both them and the company.
Remember, harassment is seen as a form of victimisation and therefore an automatically unfair labour practice. The maximum penalty for harassing an employee or failing to protect an employee from harassment in terms of the LRA would therefore be 24 months salary.