Harassment in the workplace. Extended definition

November 2022

Concerning the revision of the “Harassment Law” (not necessarily sexual harassment), this newly published legislation as discussed in the report of August 2022, as being enacted to be inclusive legislation in that it contains provisions which refer to the Employment Equity Act 55 of 1998, the Labour Relations Act 66 of 1995, Civil Law with respect to Promotion of Equity and Prevention of Unfair Discrimination Act 4 of 2000 and the Criminal Law, especially referring to Criminal Procedure Act 51 of 1997 and the Cybercrimes Act 19 of 2020, in this regard harassment is widely defined with respect to the workplace and does not only include unfair discrimination, unfair dismissal, damages and costs, but also fines and imprisonment as well as harassment concerning violence and intimate images. A special meeting was held by BUSA membership during the month with SocPol with the objective of identifying the focus areas of this new legislation (namely; workplace alignment, power skills, risk management and the codes as set out by this legislation). The members specifically focused on the inclusion of constraints concerning newly defined harassment activity included within the Act concerning the Code of Good Practice on the prevention and the limitation of harassment in the workplace. Such newly defined actions of harassment by management, senior personnel, supervision and other employees include but are not limited to the following:

❖ Impairment of employee dignity;
❖ Negative impact on personal well-being;
❖ Subjected to abusive conduct;
❖ Abusive language and bullying;
❖ Constant and compromising criticism (impacting on job performance);
❖ Emotional abuse;
❖ Humiliations;
❖ Intolerance of personal circumstance;
❖ Pressure and undue pressure on an employee to resign.

The above core criteria are key risk areas and are not necessarily attuned to gender or race or religious or similar factors traditionally linked to harassment in the workplace.

Meeting held on 14 September 2022 involving both CAPES and TESD/CEA memberships concerning the NEDLAC negotiations related to the Employment Equity amendments and in particular the responsibility of the TES Sector was also deliberated upon. Specific focus of the meeting reflected on Chapter (3) (Affirmative Action) and especially with reference Section 57 of the Employment Equity Act amendments.

Concerning Section 57 (1), for the purposes of Chapter (3) of this Act, a person whose services have been procured for or provided to a client by a Temporary Employment Service provider, is deemed to be the Employee of that client, where that person’s employment with the client is of an indefinite duration or for a period of three months or longer. To be read with this Section, is the complementary Section 57 (2), which prescribes that …. “Where a temporary employment service, on the express or implied instruction of a client, commits an act of unfair discrimination, both the temporary employment service and the client are jointly and severally liable.”

Therefore, concerning the above amendments, which are particular to the Temporary Employment Services Industry (TES Sector), it is vital to bear in mind that going forward with the gazettal of the Employment Equity Amendment Act, the relationship between the TES and client will need to be reviewed and further managed by the TES provider to a greater extent than previously and more specifically, in order to mitigate undue risk that may derive from the daily activity of this commercial arrangement.

The concerns of Chapter 3 (Affirmative Action) as referred to above, have other implications for the TES Sector, specifically in terms of joint responsibility created by the (EEA) and the tripartite relationship that exists between client, employee and the temporary employment services provider. Further to this responsibility, this Chapter implies additional obligations to be complied with, in terms of the tripartite relationship which relates to employment equity planning, successive employment equity planning, disclosure of information, matters for consultation, consultation with employees, the duty to inform and the duty to keep records, especially in terms of income differentials.

K. Cowley
(Vice-Chairperson – (CEA – TESD)