| 4.1 | The term "harassment" is not defined in the EEA.4 Harassment is generally understood to be— |
| 4.1.1 | unwanted5 conduct, which impairs dignity; |
| 4.1.2 | which creates a hostile or intimidating work environment for one or more employees or is calculated to, or has the effect of, inducing submission by actual or threatened adverse consequences; and |
| 4.1.3 | is related to one or more grounds in respect of which discrimination is prohibited in terms of section 6(1) of the EEA. |
| 4.2 | Harassment includes violence, physical abuse, psychological abuse, emotional abuse, sexual abuse, gender-based abuse and racial abuse. It includes the use of physical force or power, whether threatened or actual, against other person or against a group or community. |
| 4.3 | Harassment against all employees in the workplace is an abuse of power. This Code recognises that harassment particularly affects employees in vulnerable employment who, while covered by labour legislation, may have in practice poor access to the exercise of labour rights such as freedom of association, collective bargaining, decent work, protection from discriminatory practices and access to dispute resolution forums. |
Moreover, the intersection of factors such as race, religion, gender, or disability increases the risk of harassment.
| 4.4.1 | The criterion that harassment involves unwanted conduct distinguishes acts of harassment from acceptable conduct in the workplace. Two primary issues arise in evaluating whether the harasser/perpetrator knew or should have known that the conduct was unwanted. |
| 4.4.2 | Firstly, the issue arises as to whether the complainant6 communicated to the harasser/perpetrator that the conduct was unwelcome. Secondly, this may have occurred verbally or non-verbally and may have been communicated directly or indirectly to the harasser/perpetrator. |
| 4.4.3 | If there is no such communication, it will still be necessary to examine whether the conduct was of such a nature that the harasser/perpetrator knew or should have known that conduct of the type engaged in, is generally considered to be unacceptable. |
| 4.4.4 | While violent conduct may amount to harassment, harassment may occur as a result of non-violent conduct. Accordingly, an act or threat of violence is not an essential element of harassment. Likewise, certain acts of harassment may involve a criminal offence and the employer may be under a duty to report certain acts of harassment to the police. |
| 4.4.5 | Whether or not conduct constitutes harassment, should be assessed on an objective basis from the perspective of the employee who alleges harassment. The primary focus of the inquiry as to whether there has been harassment, is on the impact of the conduct on the employee. However, there may be circumstances in which the perceptions of the person harassed are not consistent with the views of a "reasonable person" in the situation of the complainant. In such circumstances, a person or employer charged with harassment, may seek to establish that the complainant's perceptions are not consistent with societal values reflective of our constitutional ethos. |
| 4.5 | Repeated or serious conduct |
| 4.5.1 | Harassment may occur as a result of a pattern of persistent conduct or a single instance or event. In the case of a single instance, harassment will be present if the conduct is of a serious nature. Whether a single instance of conduct will be sufficiently serious to constitute harassment must be determined in light of the event that is the subject of the complaint. |
| 4.5.2 | Harassment, in particular bullying, may be an escalating process in the course of employment in which the complainant ends up in an inferior position and becomes the target of systematic negative social acts. |
| 4.5.3 | It is not necessary to establish the intention or state of mind of the harasser/perpetrator in order to prove harassment for the purposes of the EEA. The fact that the conduct was calculated or intended to offend the complainant(s) may be an aggravating factor relevant to determining a remedy for the complainant. The intention of a harasser/perpetrator may also be relevant to disciplinary proceedings. |
| 4.5.4 | The following factors may be relevant to the issue of whether harassment has occured— |
| 4.5.4.1 | the context of the harassment; |
| 4.5.4.2 | the circumstances of the complainant and the impact that the conduct has had on an employee; and |
| 4.5.4.3 | the respective positions of the harasser/perpetrator and complainant. |
| 4.6 | Hostile work environment |
| 4.6.1 | A hostile work environment will be present where conduct related to a prohibited ground impacts on the dignity of one or more employees. This will be present if the conduct has a negative impact on the employee's ability to work and/or on their personal well-being. This may be the result of conduct of persons in authority such as managers and supervisors or the conduct of other employees. |
| 4.6.2 | A hostile environment may also be present where an employer should anticipate that employees will be subject to abusive conduct related to a prohibited ground by members of the public, customers or clients and fails to take reasonable steps to protect employees from such conduct. |
| 4.6.3 | In order to establish the existence of a hostile work environment, it is not necessary to show that the complainants have not received a particular benefit. |
| 4.6.4 | Harassment is considered to be direct where it is aimed at the complainant - for example, violent conduct or abusive language which is directed at the complainant. Harassment may occur indirectly where the conduct, even though not directed at the complainant, has the effect of undermining dignity or threatening safety. |
| 4.7.1 | Harassment may be the result of physical, verbal, or psychological conduct. |
| 4.7.2 | Physical harassment includes physical attacks, simulated or threatened violence, or gestures (such as raising a fist as if to strike a person or throwing objects near a person). |
| 4.7.3 | Verbal bullying may include threats, shaming, hostile teasing, insults, constant negative judgement, and criticism, or racist, sexist, or LGBTQIA+ phobic language. |
| 4.7.4 | Psychological harassment in the workplace may be associated with emotional abuse and involves behaviour that has serious negative psychological consequences for the complainant(s) such as is often the case with verbal abuse, bullying and mobbing. |
| 4.7.5 | A wide range of conduct in the workplace may constitute harassment. Examples of harassment include, but are not limited to: |
| 4.7.5.1 | slandering or maligning an employee or spreading rumours maliciously; |
| 4.7.5.2 | conduct which humiliates, insults or demeans an employee; |
| 4.7.5.3 | withholding work-related information or supplying incorrect information; |
| 4.7.5.4 | sabotaging or impeding the performance of work; |
| 4.7.5.5 | ostracising, boycotting, or excluding the employee from work or work-related activities; |
| 4.7.5.6 | persecution such as threats, and the inspiration of fear and degradation; |
| 4.7.5.7 | intolerance of psychological, medical, disability or personal circumstances; |
| 4.7.5.8 | surveillance of an employee without their knowledge and with harmful intent; |
| 4.7.5.9 | use of disciplinary or administrative sanctions without objective cause, explanation, or efforts to problem solving; |
| 4.7.5.10 | demotion without justification; |
| 4.7.5.11 | abuse, or selective use of, disciplinary proceedings; |
| 4.7.5.12 | pressuring an employee to engage in illegal activities or not to exercise legal rights; or |
| 4.7.5.13 | pressuring an employee to resign. |
| 4.7.6 | In practice, a number of different terms are used to describe conduct in the workplace that amounts to harassment. While these terms are not used in legislation, they provide a useful basis for understanding and preventing harassment in the workplace. |
| 4.7.7 | Bullying - where harassment involves the abuse of coercive power by an individual or group of individuals in the workplace. Intimidation - this is intentional behaviour that would cause a person of ordinary sensibilities to fear injury or harm. Workplace bullying may involve aggressive behaviour in which someone repeatedly causes another person injury or discomfort. |
| 4.7.8 | Harassment may be referred to as being "vertical" or "horizontal". Vertical harassment (also known as "tangible or material") involves the use of formal power (i.e. title, position, or supervisory control) or material leverage (i.e. financial, informational, resource or legal) to intimidate, threaten, harass, or harm an employee or to dominate and control the complainant. Vertical harassment refers to harassment between the employer/manager and employee. Horizontal harassment refers to harassment between employees in the same position or on the same level.7 |
| 4.7.9 | Passive-aggressive or covert harassment may include negative gossip, negative joking at someone's expense, sarcasm, condescending eye contact, facial expression, or gestures, mimicking to ridicule, deliberately causing embarrassment and insecurity, invisible treatment, marginalisation, social exclusion, professional isolation, and deliberately sabotaging someone's dignity, well-being, happiness, success, and career performance. |
| 4.7.10 | Mobbing is a form of harassment by a group of people targeted at one or more individuals. |
| 4.7.11 | Online harassment is harassment which is committed, assisted, or aggravated in part or fully, by the use of information and communications technology such as mobile phones, smart phones, the Internet, social media platforms or email. Bullying when conducted online is referred to as cyber-bullying. |
| 4.8.1 | Harassment of an employee is prohibited in terms of section 6(1) of the EEA, if the harassment is related to one or more prohibited grounds. |
| 4.8.2 | It may also be possible for a person who has been harassed to establish that the conduct was result of an arbitrary ground, as contemplated by section 6(1) of the EEA. |
___________________________________________
| 4 | Definitions of harassment are found in the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 and the Protection from Harassment Act, 2011. |
| 5 | Conduct amounting to harassment is often described as being "unwelcome"; the terms "unwanted" and "unwelcome" are synonymous. In this Code, the term "unwanted" is used as it is consistent with language of PEPUDA. |
| 6 | In McGregor v Public Health and Social Development Sectoral Bargaining Council and Others [2021] ZACC 14, the Constitutional Court, while referring to the "victim", notes that: "[w]here the word "victim" is used, it is used with acknowledgement, sensitivity and deference to the fact that those who experience sexual harassment or any form of gender-based violence may prefer to identify as a "complainant", "survivor", "victim" or "victim survivor", or may choose not to identify with those, or any, terms" (Footnote 5 to paragraph 1) |
| 7 | In McGregor v Public Health and Social Development Sectoral Bargaining Council and Others [2021] ZACC 14, the Constitutional Court reiterated that the seniority of a perpetrator and a disparity in age between the perpetrator and the complaint are aggravating factors, in instances of sexual harassment. This confirms the approach of the Labour Appeal Court in the Campbell Scientific Africa (Pty) Ltd v Simmers. |
