New work rules require a total overhaul for businesses in South Africa: experts

A new Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace has become effective in South Africa, and will require a total overhaul of sexual harassment and harassment policies for business in the country, says legal firm, Webber Wentzel.

Some of the biggest changes include in the new code are:

  • Addresses more than sexual harassment and includes gender-based violence and harassment, bullying, and racial, ethnic or social origin harassment;
  • Accounts for new ways of working as it identifies the need to address harassment outside the workplace, particularly, where employees are working virtually from their homes or any place other than their physical workplace;
  • Acknowledges victims of harassment, including women, men, persons who are part of the LGBTQIA+ community as well as other vulnerable persons who have poor access to labour rights;
  • Extends the perpetrators and victims of harassment to persons who are volunteers, persons in training, customers and clients and other persons who have dealings with the business, which could extend beyond the employer-employee relationship;
  • Clarifies the test for sexual harassment specifically – this includes ‘unwelcome conduct of a sexual nature, whether direct or indirect, that the perpetrator knows or ought to know is not welcome’.

Not rigid 

The new code also alludes to the creation of an approach to dealing with harassment cases that is not rigid and is more holistic, said Webber Wentzel.

Such an approach requires the employer to consider the implementation of:

  • Better education and information regarding harassment, particularly sexual harassment;
  • Training as to how to properly deal with and counsel complainants of sexual harassment;
  • An inquiry into the sexual harassment that is inquisitorial rather than adversarial;
  • A workplace environment that is aware of harassment and its effects and that does not enable perpetrators to harass, but rather enables complainants to speak up without fear of reprisal.

Given the prevalence of all forms of harassment in the workplace, employers must ensure that they take active steps to prevent and eliminate harassment in the workplace lest they become liable for damages in terms of vicarious liability, the firm said.

“This risk of such liability is greatly increased under the new Code, particularly for those employers who neglect to update their policies and practices in this regard, it said.

“Employers need to cultivate a workplace culture that focuses on educating all employees on the seriousness of harassment in the workplace and training persons in the human resources department on how to appropriately deal with complainants in cases of harassment striving toward a safe and respectful work environment, free of discrimination for all employees.”

Commentary by Pamela Stein, Joani van Vuuren, and Jamie Jacobs of Webber Wentzel.

Read: South Africa to look at ‘German system’ for jobs: Ramaphosa

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New work rules require a total overhaul for businesses in South Africa: experts