Legal Framework

3

3.1 the international Labour Organisation (ILO) adopted a new Convention l90 concerning the Elimination of Violence and Harassment in the World of Work. The Convention obliges ratifying states to adopt, in accordance with national laws and circumstances and in consultations with representative employers’ and workrs’ organisations, an inclusive and Gender-responsive approach to the prevention and elimination of violence and harassment in the world of work.

This Convention has declared that violence and harassment in the workplace, is also a human rights violations and can be seen as such against the backdrop of this Code of Practice. 

3.2 The EEA is one of several statutes that address issues dealt with in Convention I90. The EEA does so by prohibiting the harassment of employees on a ground listed in Section 6(1)

3.3 The Minister has previously issued a Code of Good practice on the handling of Sexual Harassment cases in the Workplace in 2005. This Code replaces the 205 Code and, in particular seeks to –

3.3.1 provide guidance in respect of harassment on any of the prohibited grounds;

3.3.2 take into account recent developments in case law, statutes, issues dealt with in the ILO Convention I90 and other ratified Conventions.

4. Section 5 of the EEA requires employers to take step to promote equal opportunity in the workplace by eliminating unfair discrimination, including harassment in any employment policy or practice. Harassment in the workplace is a form of unfair discrimination, which employers are required to eliminate and it constitutes a barrier to equity in the workplace.

The Courts will in due course have to decide, if this Act can be made retrospective to any cases that is currently under review and of which the labour processes has yet not come to a conclusion and for which an award has not yet been made. This would imply that the person is at this very moment, since the Code became part of the labour environment, experiencing the trauma of the harassment and may call on this Code to declared at a tribunal, bargaining Council or labour Court that harassment is prevalent.

5. Section 6(1) of the EEA states that “no person may unfairly discriminates, directly or indirectly against and employee, in any employment policy or practice, on one of the grounds, including race, gender, sex, pregnancy , marital status, family responsibility ,thnic or social origin, sexual orientation, age disability, religion HIV Status, conscience, belief, political opinion, language, birth or on any other arbitrary ground.”