A draft code of good practice on the prevention and elimination of violence and harassment in the workplace was published in the Government Gazette on the 20th of August and all interested and affected parties such as employers, employees, employee organisations and trade unions are invited to comment within 60 days.
The draft policy falls within the ambit of the Employment Equity Act and covers a wide range of undesirable behaviour falling within the scope of Violence and Harassment in the workplace. This includes sexual harassment, bullying including cyber bullying and threats of on-line violence, intimidation, threats of violence and harassment in a number of areas focusing on racial, ethnic or social issues or threats to whistle blowers or gender or LGBT violence or harassment.
The code applies to all sectors, public and private, formal and informal and any place that could be defined as an area of work. Any areas outside of a workplace that are governed by the process of work would be included, i.e. travel, rest areas, outside training, even commuting to and from work or accommodation provided by an employer.
The employer would also be responsible for a safe on-line and communications environment and would need to control harmful behaviour or practices conducted in these spaces.
From the Draft Act;
Sexual Violence and Harassment: defined as directly or indirectly engaging in conduct that the perpetrator knows or ought to know is not welcome, is offensive to the complainant and makes the complainant feel uncomfortable, interferes with work, causes harm or inspires the reasonable belief that harm may be caused to the complainant or a related person.
Racial Violence and Harassment: is defined as unwanted persistent conduct, or a single incident which is seriously degrading, humiliates or creates a hostile or intimidating environment, or is calculated to influence submission by actual or threatened disadvantageous consequences, and which is related to a person’s membership or presumed membership of a group identified by one or more of the prohibited grounds or a characteristic associated with such group.
All conduct either verbal or non-verbal of a racist nature whether through remarks, abusive language, name-calling, offensive behaviour, gestures or cartoons, memes or insinuations are considered undesirable.
Most of the practices listed and defined by the Draft Act fall within the generally accepted scope of “Good Practice” in a work place and are not new to most employers as the principles should be dealt with in their existing Code of Conduct policies. The draft has sought to define and label definite practices which are abhorrent and unacceptable in a modern work setting if compared to what a reasonable person would accept as normal and appropriate behaviour.
How does this affect the employer?
Employment Equity Committee and Policies
The Draft Act is being proposed as an amendment to the Employment Equity Act and as such employers must look to their employment equity managers and committees to ensure that these items are addressed on their agenda at meetings and incorporated into their employment equity plans and policies. Conclusions, minutes and resolutions relating to employment equity policies should be made available to all employees to view.
Every effort should be made by employers to ensure measures are put in place to actively prevent an environment developing where violence or harassment is tolerated. Establishing a workplace culture of respect, dignity and inclusion for all individuals is required and expected.
Company Policies
The principles defined in the Act will reach across many Company Policies and Procedures that may already have been created and accepted in an Organisation. We suggest that these are scrutinised and revised so that once the Act is accepted into law there is no scramble to become compliant.
Policies that may need revision would be the Company Code of Conduct, Dress and Ethics Policies, Language Policy, Racial Harassment Policy, Occupational Health Policies and On-line Systems User Policies.
Contracts of Employment should be reviewed to ensure there is no racial or gender bias in the documents.
Prevention and Awareness Programmes should be introduced:
The Draft Act encourages Organisations to develop a culture of dignity and respectful engagement between employees as well as between employer and staff. This may take effort and it could be helpful to engage outside specialists to offer training and programmes that increase awareness of Violence and Harassment issues whether they are sexual or racial as well as establish guidelines of acceptable behaviour and practices in the workplace.
It is the employer’s duty to provide relevant information, instructions and training where necessary to ensure there is a safe working environment, free of risk to health whether physical or psychological, in a manner which is dignified, protected and respected.
Treatment, Care and Support of Victims:
The employer should establish a protocol or guideline for the treatment and care of a possible victim within an Organisation. Should there be an incident of sexual, racist or violent harassment within the workplace it is important that everyone has guidelines that are clear on the interventions required in terms of their Workplace Occupational Health and Safety strategy. Employers and employees are jointly responsible for creating a healthy workplace. Appropriate referrals for counselling and other interventions must be communicated.
Privacy, Consent and Record-Keeping of Personal Information:
Employers and workers must ensure that complaints procedures and disciplinary issues are kept private and the rights of the affected parties are protected. Records must be kept in a safe and secure place and consent must be acquired before sharing personal information. A privacy policy should already be in place for the Organisation.
Procedures in Managing Violence and Harassment:
Employers must develop clear procedures to deal with Violence and Harassment. These can form part of the Company’s normal disciplinary code. Steps must be taken to clearly communicate to employees that they can report incidents to managers or human resource departments and these complaints will be dealt with swiftly and thoroughly and should the incident be of a serious nature there will be attention given to the well-being of the employee through counselling interventions, appropriate privacy provided and disciplinary procedures for the perpetrators.
A culture that encourages freedom to report or discuss sexual, racial or other types of bullying and harassment must be maintained and an employee should be aware that if an incident occurs it would not be trivialised or ignored.
Monitoring and Evaluating Practices:
Employers need to design and implement strategies, policies and programmes to eliminate Violence and Harassment, by identifying key elements to create a monitoring and evaluation system. The system or mechanism created is intended to be a collaboration between employer and employees to track implementation and ensure there is an informed response. These mechanisms and evaluation strategies must consider national efforts to eliminate Violence and Harassment in broader society.
Challenges for Employers:
The Draft Act speaks to cultural development within Organisations and this is in line with fresh impetus by Government to promote a more equal and dignified society where behaviour that could be labelled as demeaning or threatening is stamped out and recognised as having no place either in the work place or society in general.
Very often an employer may find themselves in a position of addressing particular behaviour patterns from employees that would fly in the face of what would be considered appropriate. It is often difficult to identify this, but it is up to the employer to recognise and take heed of warning signs that there may be something amiss and act timeously to prevent an incident from developing.
A culture of decency develops where appropriate behaviour is encouraged and learnt by an employee who is observing it continuously from employers and management. Ignoring Violence and Harassment can have major negative consequences for an Organisation that they may be ill-equipped to deal with both financially and from a marketing or PR perspective.