Yvonne Mkefa | Director | Employment Law | Cliffe Dekker Hofmeyr (CDH) | mail me |
Since the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (Code) came into effect, harassment claims have increased. These include sexual harassment, racial discrimination and gender-based bullying. They also include harassment based on arbitrary or prohibited grounds.
Importantly, harassment now extends beyond the physical workplace. It also occurs in remote environments and digital workspaces. Therefore, fostering a safer workplace has become more complex and more urgent.
ILO Convention and global standards
Recent global developments reinforce this need. Employers must actively maintain safe and respectful environments. Otherwise, they face legal liability. As a result, fostering a safer workplace is no longer optional.
Questions about whistle-blower rights often arise in harassment cases. These include protection, retaliation, and malicious complaints. Therefore, organisations must address these issues alongside fostering a safer workplace.
The International Labour Organisation (ILO)’s Violence and Harassment Convention No. 190 sets a global benchmark. It requires employers to create workplaces with zero tolerance for harassment. In addition, it recognises harassment as a human rights violation.
The convention highlights the impact on equality and dignity. It also links harassment to reduced opportunity. If an employee proves that harassment affected equal opportunity, they can pursue a claim. Therefore, fostering a safer workplace aligns with both legal and ethical obligations.
South Africa and Namibia
In November 2024, the South African Commission for Employment Equity hosted a conference. The discussions focused on aligning national laws with the Convention. Both South Africa and Namibia participated.
South Africa has made significant progress. It established a comprehensive legal framework aligned with the convention. The Code under the Employment Equity Act plays a central role. It recognises harassment as unfair discrimination. It also requires employers to prevent and address complaints.
If employers fail to comply, authorities may sanction them. Therefore, fostering a safer workplace is a legal requirement. Similarly, Namibia’s Constitution protects equality and dignity.
The Labour Act and Affirmative Action Act support anti-discrimination principles. However, Namibia’s framework lacks specific provisions on harassment. As a result, the country is reforming its Labour Act. It is developing a Draft Occupational Safety and Health Bill. It is also drafting an Employment Equity Bill. These reforms include a “change agents” programme. This initiative will train employers and employees to address harassment.
Global trends and employer responsibilities
The CEE engagement revealed a clear global trend. Regulators increasingly recognise the seriousness of workplace harassment. Consequently, they expect employers to act proactively.
For example, the United Kingdom introduced the Employment Rights Bill. This bill extends employer obligations. It also raises questions about fairness in dismissal cases. These cases involve opposing but protected views under the Equality Act 2010.
These developments highlight a broader shift. Employers must take active steps to protect employees. They must also respond quickly to complaints. Therefore, fostering a safer workplace requires continuous effort.
Why harassment matters for employers
Recent litigation illustrates the risks clearly. In December 2024, claimants filed a class action against BHP and Rio Tinto. They alleged failures to investigate sexual harassment claims over two decades.
They also claimed that companies failed to discipline employees properly. In addition, they alleged misuse of non-disclosure agreements. These agreements prevented victims from speaking out. Some employees also faced discrimination after reporting incidents.
Although South Africa has not yet seen similar class actions, the risk exists. Employer obligations are clear under local law. Failure to meet these obligations creates exposure to litigation. Therefore, fostering a safer workplace reduces legal and reputational risk.
What should South African employers do?
Under South African law, employers assume liability under section 60 of the Employment Equity Act. Therefore, they must take proactive steps.
Employers should:
- implement effective procedures to handle harassment claims.
- develop and enforce clear anti-harassment policies.
- ensure employees understand these policies.
- conduct regular training.
- respond effectively to reported incidents.
These steps support compliance and strengthen organisational culture. More importantly, they contribute to fostering a safer workplace.
Confidentiality agreements and harassment
The #MeToo movement raised questions about confidentiality agreements. These agreements often prevent victims from disclosing harassment. However, global trends now favour greater transparency.
In the United States and the United Kingdom, legal developments support disclosure. South African courts have not directly addressed this issue. However, the Labour Appeal Court provided guidance in Jacobs v KwaZulu-Natal Treasury.
The court ruled that disclosure did not breach confidentiality. The employee exposed irregularities and dishonesty. This ruling confirms that confidentiality cannot conceal wrongdoing. Therefore, fostering a safer workplace requires transparency.
Where is the whistle-blower?
Whistle-blowing plays a critical role in exposing misconduct. The Protected Disclosures Act provides legal protection. Historically, South Africa has ranked highly in this area.
To qualify for protection, disclosures must meet specific criteria. They must also be made to the correct authority. However, practical protection remains limited. Many whistle-blowers still face risks.
The government plans to address this gap. In the 2025 State of the Nation Address, President Ramaphosa announced reforms. These include a new Whistle-blower Protection Bill.
At the same time, organisations must address false disclosures. Some employees misuse whistle-blowing protections. They attempt to delay disciplinary processes. False disclosures carry legal consequences. The Protected Disclosures Act includes penalties for malicious reporting. Offenders may face fines or imprisonment. Therefore, fostering a safer workplace requires balancing protection with accountability.
In conclusion
Employers must address both harassment and false whistle-blowing. They must protect employees while maintaining system integrity. This balance is essential.
Ultimately, fostering a safer workplace requires leadership commitment. It also requires consistent action. Organisations must move beyond compliance. They must embed safety and respect into their culture.
