Other Statutes Impacting on Harassment
7. Other Statutes Impacting on Harassment
7.1 The EEA is one of several Acts that are relevant to the implementation of South Africa’s obligations in terms of the Convention I90 to prevent violence and harassment in the world of work. This section of the Code identifies other laws which place obligations on employers to prevent violence and harassment in the workplace.
7.2 Constitutional right to fair labour practices.
7.2.1 Section 23(1) of the Constitution provides that everyone has the right to fair labour practices. This has been interpreted as including the right of employees to be protected from harassment at work by persons who are not co-employees such as independent contractors, customers, or visitors to their employers’ premises.
7.3 Promotion of Equality and prevention of Unfair Discrimination Act, 4 of 2000 (PEPUDA)
7.3.1 Harassment on prohibited grounds, which does not arise out of an employment policy or practice, is prohibited by the PEPUDA. While the Ast regulates harassment and discrimination generally in society, ther are circumstances where harassment and discrimination ocurring in the workplace, or the world of work will be covered by PEPUDA.
This be the case if;
7.3.1.1 the harassment occurs as a result of the conduct of somebody who is not an employer or employee, for example the harassment of an employee by a client, customer, independant contractor, an employee of a different business or any other member of the public.
When we look at the setup with a school, we havethe State as an Employer as well as the Schools as an Employer. This would mean according to the above interpretation the PEPUDA act will apply regarding any discrimatory practices between an eployee of the state and the employee of the School. Also the SGB, could be seen as independent from the school as a sperate entity, and organ of the state, and most likely will also fall under this same act.
7.3.1.2 the harassment occurs within the world of work but outside of the control of the employer, for and example while an employee is commuting on public transport.
7.3.1.3 a complaint of harassment is received from a client, customer, or other member of the public that an employee has harassed them; and
7.3.1.4 the victim of the harassment is a a worker who falss outside the definition of an ’employee” in the LRA.
Labour Relations Act, 66 of 1995
7.4.1 Harassment of employees may also give rise to issues regulated by the labour Relations Act (:LRA”). In particular, employers are required to ensure that persons who engage in harassment including violence are subject to discipline in accordance with the Code Good Practice: Unfair Dismissal. Where aan employee resigns on account of being harrassed at work, the nature of the harassment would be relevant if the employee alleges constructive dismissal on the basis that the employer had made continued employment intolerable for the employee.
7.4.2 Harassment may also constitutes an automatically unfair dismissal in terms of section 187 (1)(f) of the LRA.
Occupational Health and Safety Act, 85 of 1993
7.5.1 Employers have an obligation under the Occupational health and Safety Act, 1993 (‘OHSA”) to protect employees against any harassment which would endanger the health or safety of the employee. The OHSA read with its regulations and incorporated standards, requires the employer to provide and maintain as far as is reasonably practical, a working environment that is safe and without risks to the kealth and safety of employees and to take such steps as may be reasonably practical to eliminate or mitigate the hazard or potential hazard. Where the nature of an employee’s duties are of such a nature that they are exposed to a significant risk of violence while at work, the employer must take steps as may be reasonably practical to eliminate or mitigate this hazard.
7.5.2 A wide range of employees work in situations which bring them in contact with clients or the public where there is a significant risk of harassment, including violence. In these circumstances the employers must institute measures consistent with the OHSA to ensure protection for employees against harassment and violence. This would be particularly significant in sectors such as hospitality, security, policing or criminal justice operations, frontline and first responder emergency services or in situations where money or prescription drugs are handled.
Schools can be include into this category, especially as we start looking at parents an other visitors at sporting events between schools.
7.7 Protection from Harassment Act, 17 of 2011
7.7.1 The Protection from Harassment Act, 2011 enables individuals who are subjected to harassment, as defined in that asct, to obtain a protection order, including and interim protection order against the harasser. The ACT covers harassment inall spheres of life including the workplace. The definition of harassment is wide and includes physical conduct as well as electronic and other communications which may cause mental, phycological, physical, or economic harm.