Employers who fail to act on harassment will be liable for the conduct of their employees

Durban - The Department of Employment and Labour warned employers that failure to act on harassment issues within the workplace would result in them being held liable for the conduct.

Ntsoaki Mamashela, who is the director of employment equity, was speaking to employers during an Employment Equity (EE) roadshow workshop on Wednesday.

Mamashela said the failure of employers to take adequate steps to eliminate harassment would render the employer liable for the conduct of its employees who harass others.

“Failure to take adequate steps to eliminate harassment once an allegation of harassment by an employee has been submitted within a reasonable time will render the employer vicariously liable for the conduct of the employee in terms of section 60 of the EE Act. This is the case even if the harassment consists of a single incident," she said.

She advised that any allegation of harassment by an employee brought to the attention of the employer requires that the employer consult all relevant parties.

The employer must also take the necessary steps to address the complaint in accordance with the Code of Good Practice, the employer’s policy where applicable, the collective bargaining agreement and take the necessary steps to eliminate the harassment.

The new Code of Good Practice on the prevention and elimination of harassment in the workplace was published on 18 March 2022.

The code covers:

• Owners
• Employers
• Managers
• Supervisors
• Employees
• Job seekers and job applicants
• Persons in training including interns,
• Apprentices and persons on learnerships;
• Volunteers, clients, suppliers, contractors and others having dealings with an organisation

The protection extends to both public and private spaces:

• Where the worker is paid,
• During rest or meal breaks or using sanitary facilities,
• Washing and changing facilities;
• Work-related trips, travel, training, events, or social activities;
• Related communications including those enabled by information and communication technologies;
• Employer-provided accommodation and when commuting to and from work in transport provided or controlled by the employer.

The Commission for Conciliation, Mediation and Arbitration (CCMA) said it has the jurisdiction to hear disputes on harassment provided the complainant earns a salary within the threshold set according to the Basic Conditions of Employment Act provision.

According to the CCMA, those who fall above the salary threshold are covered only if there is consent or agreement.

“Harassment is in the eyes of the recipient, and even a single incident can lead to harassment. Sexual harassment, specifically, is a good reason for a dismissal,” said the CCMA.

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