| 7.1 |
The EEA is one of several Acts that are relevant to the implementation of South Africa's obligations in terms of Convention No.190 to prevent violence and harassment in the world of work. This section of the Code identifies other laws which place obligations on employers to prevent violence and harassment in the workplace. |
| 7.2 |
Constitutional right to fair labour practices |
| 7.2.1 |
Section 23(1) of the Constitution provides that everyone has the right to fair labour practices. This has been interpreted as including the right of employees to be protected from harassment at work by persons who are not co-employees such as independent contractors, customers, or visitors to their employers' premises.9
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| 7.3 |
Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000 (PEPUDA) |
| 7.3.1 |
Harassment on prohibited ground, which does not arise out of an employment policy or practice, is prohibited by PEPUDA. While the Act regulates harassment and discrimination generally in society, there are circumstances where harassment and discrimination occurring in the workplace, or the world of work will be covered by PEPUDA.10 This will be case if— |
| 7.3.1.1 |
the harassment occurs as a result of the conduct of somebody who is not an employer or employee, for example, the harassment of an employee by a client, customer, independent contractor, an employee of a different business or any other member of the public; |
| 7.3.1.2 |
the harassment occurs within the world of work but outside of the control of the employer, for an example while an employee is commuting on public transport; |
| 7.3.1.3 |
a complaint of harassment is received from a client, customer, or other member of the public that an employee has harassed the; and |
| 7.3.1.4 |
the victim of the harassment is a worker who falls outside of the definition of an "employee" in the LRA. |
| 7.4 |
Labour Relations Act, 66 of 1995 |
| 7.4.1 |
Harassment of employees may also give rise to issues regulated by the Labour Relations Act ("LRA"). In particular, employers are required to ensure that persons who engage in harassment, including violence, are subject to discipline in accordance with the Code of Good Practice: Unfair Dismissal. Where an employees resigns on account of being harassed at work, the nature of the harassment would be relevant if the employee alleges constructive dismissal on the basis that the employer had made continued employment intolerable for the employee. |
| 7.4.2 |
Harassment may also constitute an unfair labour practice in terms of section 186(2) of the LRA, if the unfair conduct relates to promotion, demotion, probation, training or to the provision of benefits. To establish an unfair labour practice, it is not necessary to demonstrate the link to prohibited ground. |
| 7.4.3 |
Harassment may also constitute an automatically unfair dismissal in terms of section 187(1)(f) of the LRA. |
| 7.5 |
Occupational Health and Safety Act, 85 of 1993 |
| 7.5.1 |
Employers have an obligation under the Occupational Health and Safety Act, 1993 ("OHSA") to protect employees against any harassment which would endanger the health and safety of an employee. The OHSA, read with its regulations and incorporated standards, requires the employer to provide and maintain as far as is reasonably practicable, a working environment that is safe and without risks to the health and safety of employees and to take such steps as may be reasonably practicable to eliminate or mitigate the hazards or potential hazard. Where the nature of an employee's duties are of such a nature that they are exposed to a significant risk of violence while at work, the employer must take such steps as may be reasonably practicable to eliminate or mitigate this hazard. |
| 7.5.2 |
A wide range of employees work in situations which bring them into contact with clients or the public where there is significant risk of harassment, including violence. In these circumstances, the employer must institute measures consistent with the OHSA to ensure protection for employees against harassment and violence. This would be particularly significant in sectors such as hospitality, security, policing or criminal justice operations, frontline and first responder emergency services, or in situations where money or prescription drugs are handled. |
| 7.6 |
Protected Disclosures Act, 26 of 2000 |
| 7.6.1 |
Acts of harassment against an employee for having made a protected disclosure (whistleblowing) are prohibited. This will occur when an employee is subjected to an occupational detriment in terms of the Protected Disclosures Act, 2000. |
| 7.7 |
Protection from Harassment Act, 17 of 2011 |
| 7.7.1 |
The Protection from Harassment Act, 2011 enables individuals who are subject to harassment, as defined in that Act, to obtain a protection order, including an interim protection order against the harasser. The Act covers harassment in all spheres of life including the workplace. The definition of harassment is wide and includes physical conduct as well as electronic and other communications which may cause mental, psychological, physical, or economic harm. |
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| 9 |
Piliso v Old Mutual Life Assurance Co. (SA) Ltd & Others (2007) 28 ILJ 897 (LC) at para 89. |
| 10 |
Samka v Shoprite Checkers (Pty) Ltd & others (2020) 41 ILJ 1945 (LAC).
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Protection of Businesses Act, 1978
