By lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za.
The Code of Good Practice in the Prevention and Elimination of Violence and Harassment in the Workplace (The Harassment Code) became effective in March 2022. This code replaces the Code of Good Practice on Dealing with Sexual Harassment in the Workplace. While the new code deals thoroughly with sexual harassment it covers all types of harassment that affects the dignity of employees and other persons connected to the workplace and is related to the EEA’s grounds for unfair discrimination.
Until the advent of this code mistreatment of employees due to spite or bigotry was not dealt with well by labour law. But this code goes a long way towards addressing such workplace victimisation.
The Labour Relations Act (LRA) has avoided dealing directly with the concept of ‘workplace victimisation’. I have been unable to find this term mentioned anywhere in the LRA. This is most surprising since one of the key purposes of the Labour Relations Act (LRA) is to give effect to the Constitutional provision for the right to fair labour practice.
The LRA does, to an extent, deal with the issue of victimisation in an indirect way. For example, sections 5, 185 and 186(2) of the LRA deal with certain unfair practices (short of dismissal) that could amount to victimisation. And chapter 2 of the EEA also alludes to practices that could constitute victimisation. These sections attempt to define and prohibit the following acts on the part of employers:
- Preventing employees or job applicants from joining trade unions or carrying out lawful trade union activities; Bribing employees or prejudicing them to avoid or halt their lawful trade union activity or to disadvantage employees/applicants due to past trade union involvement.
- Prejudice an employee or job applicant due to his/her legitimate disclosure of information.
- Prejudice and employee or job applicant who has previously or who may exercise any right conferred by the LRA.
- Bribe any job applicant not to exercise any right conferred by the LRA.
- Unfair promotion, demotion, suspension, discipline, training, or provision of benefits
- Unfair conduct on the employer’s part relation to probation or contravention of the Protection of Disclosures Act 26 of 2000.
- Unfair discrimination and harassment.
In the case of Jabari vs Telkom SA (Pty) Ltd (2006, 10 BLLR 924) the employee was ostensibly dismissed for incompatibility. However, the Court found that the true reason for his dismissal was the fact that he had lodged grievances against the employer, challenged its unfair labour practices and refused a separation package. The Court found that this amounted to victimisation. The Court judged the dismissal to have been automatically unfair and ordered the employer to reinstate the employee retrospectively with full back pay.
In many workplaces vengeful or bigoted managers cunningly avoid direct victimisation of their victims to make it more difficult for such victims to take legal action against them. Instead, they use more subtle forms of victimisation such as assigning menial tasks, moving employees into inferior workspaces, or ostracising unwanted employees. Item 4 of the Harassment Code covers a very wide variety of actions that constitute harassment. These range from creation of a hostile or intimidating workplace environment through abuse of power to bullying and emotional abuse.
Section 60 of the EEA specifically requires employers to take proactive steps to prevent all types of discrimination. And section 6 of the EEA includes harassment as a type of discrimination.
Employers therefore need to be very careful of doing anything that might resemble victimisation of employees. Section 186(1)(e) does consider a forced resignation as a dismissal (constructive dismissal) and, if the employee can prove victimisation, he/she will have a good basis for a constructive dismissal claim.
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