[Insert a hyperlink to the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace]

Gender discrimination

• The term “gender” refers to self-identification and the person’s gender role, irrespective of the sex of the person and manifests in the person’s behaviour and appearance. It therefore focuses on cultural and social characteristics, rather than the biological distinction between male and female.
• Gender-based violence refers to a type of discrimination where a person or group of a certain gender is treated differently or unfairly, simply because of the person’s gender. This is often the result of people’s ill-advised, pre-conceived ideas and stereotyping.
• It includes all forms of violence and harassment, for example: sexual harassment, gender-based violence, bullying, intimidation, threats, actual physical and psychological abuse, emotional abuse and sexual abuse. These acts often cause injury, death, physical or psychological harm, poor development, or deprivation. The acts often very badly affect people or result in the loss of benefits, opportunities or advantages in the workplace or elsewhere.
• It also includes intimate partner (husband / wife/ girlfriend / boyfriend) violence, family violence or domestic abuse which can happen face-to-face or via social media (internet) for example on Face Book, Twitter, WhatsApp. It can happen to anyone in the world of work and is an abuse of power.

The workplace

• The workplace refers to the place where people work. It may be a physical workplace (in the formal or informal economy), but could also include a virtual workplace, like electronic communications (for example, email or chat platforms), virtual meetings, social media, or any other on-line platforms where colleagues may interact or where a person could have a virtual presence.
• The workplace may also include employer provided transport, employer-linked events like conferences, meetings, business trips, or training sessions where colleagues are required to interact or likely to meet.

The Workplace

• The meaning of a “workplace” has become very broad and is no longer the traditional workplace as it was understood. It now refers to the almost any place where people work or conduct work-related activities. It may be a physical workplace (in the formal or informal economy), but could also include a virtual workplace, like electronic communications (for example, email or chat platforms), virtual meetings, social media, or any other on-line platforms, or at any other place, work-related event, or environment where colleagues may interact or where a person could have a virtual or physical presence.
• The workplace may also include employer provided transport, employer-linked events like conferences, social events where colleagues are partying, celebrating or entertaining clients or customers, meetings, business trips, or training and team-building sessions or anywhere where colleagues are required to interact or likely to meet.

Workplace harassment

• Harassment is defined as inappropriate and unwanted behaviour or mistreatment, aimed at gaining power and dominance over another, that violates the rights of a person, constitutes a barrier to equity in the workplace and/or creates a hostile working environment.
• A harasser generally has actual or perceived power over a victim and this power could arise from one or more sources such as the position that a harasser holds in an organisation, from personal or professional information that a harasser has about a victim, physical, psychological, or emotional power that a harasser has over a victim.
• Gender-based violence in the workplace could take the form of sexual harassment (based on grounds of sex, sexual orientation, or gender), bullying, threatening, spreading malicious rumours, ridiculing someone, exclusion, undermining a person, unjustified negative criticism and blocking a person from advancement in the organization, amongst various others humiliating forms of harassment.
• It may occur at any level amongst or between managers, supervisors, owners, directors, workers. Often it may happen between a manager and a worker or to a person with less power and say in the workplace or even between colleagues on the same level or position. GBV can also happen in the workplace of clients or in work involving dealings with the public, including during travel during business hours to and from work, in far off places with few people present or when work takes place during unusual hours, for example during a night shift, weekends or holidays.
• It may take the form of any unwanted sexual act, conduct, comment, advance, attention, proposal, coercion, threat, physical force, touching, embracing or even rape or sexual assault. It could be direct and visible, or it may be subtle and indirect. Either way it may be experienced as being offensive, unwelcome, intimidating and humiliating to the other person. It is often behind closed doors or in an environment where others cannot see or perceive what is going on.
• If it is not accepted by the targeted employee, it could result in that employee being victimised. Examples may include withholding of benefits (increases, bonuses, good performance scores or incentives), privileges (time-off), opportunities (promotion), or other negative and occupational detriments or consequences aimed at punishing the person (being unfairly disciplined or even dismissed).
• Quid pro Quo harassment is where a person coerces (threatens) someone else to give in to sexual advances by threatening or promising influence in return for that person’s employment opportunities, training, discipline, advancement, salary increases etc.
• Sexual favouritism is where a person in authority (owner, manager, supervisor) only advances or ‘looks after’ the interests of those who say ‘yes’ to that person’s sexual advances.

What are the responsibilities of an employer?

• Harassment is defined as a form of unfair discrimination in terms of Section 6 (3) of the Employment Equity Act No 55 of 1998, as amended (EEA). The Employment Equity Act places a duty on employers to take steps to eliminate (and prevent) any form of unfair discrimination at the workplace Contraventions of the Employment Equity Act must immediately be reported to the employer. Immediately, in the context of a claim of harassment, shall mean as soon as is reasonably possible, considering this being a sensitive issue and allegations being made against a person who is perceived to be or actually is in a position of authority and the complaint being made in the context of a fear of reprisals.
• Once the employer has been made aware of such an allegation, an investigation into the allegations must be conducted with due regard to the sensitivity and confidentiality of the situation and the parties involved. Once the facts have been established, the employer must address the situation in line with an employer’s disciplinary code and the procedure and guidelines contained in the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace 2022.
• The EEA requires an employer, who hears of an allegation that one of its employees has done something that is against or contravenes that law (e.g., sexual harassment or any form of harassment), to consult all relevant parties and to take the necessary steps to eliminate the alleged conduct. If the employer fails to do so, and it is later proved that the employee did ‘break’ or contravene the EEA law, the CCMA or court may hold the employer liable for this in terms of Section 60 of the EEA (vicarious liability).
• To avoid this liability and to protect its employees, the employer must do all that is reasonably practicable to ensure that its employees do not act in contravention of the EEA. This means that, if a case is reported to an employer, that employer is expected to investigate and to take reasonable / fair /appropriate action against the employee who is accused of contravening the EEA and to create a safe environment for people of all genders.
• To encourage reporting of these incidents, it is advisable for the employer to create awareness about the EEA and the Code of Good Practice on The Prevention and Elimination of Harassment in the Workplace 2022, to identify and train responsible individuals to deal with the investigation and hearing of these matters in a skilful and sensitive manner.
• Please note that if the GBV / harassment is committed by someone who is not an employee, the employer is not liable in so far as liability is set out in the EEA.

What are the rights of an employee?

An employee has the right to:

• A safe workplace, free of harassment and unfair discrimination.
• Enjoy free and equal access to opportunities, benefits and privileges in the workplace.
• Report to management any incident of unfair discrimination, violence or harassment without recrimination or adverse consequence.
• Thorough investigation of a complaint.
• Appropriate and reasonable action to be taken against any perpetrator.
• An employee may also lodge a claim of alleged unfair discrimination with the CCMA in the event that the employee believes that his or rights in terms of the EEA have been violated.

Domestic gender-based violence

• Gender- based violence includes intimate/domestic partner abuse, which can take the form of physical abuse, emotional or psychological abuse or cyber bullying or abuse, like revenge porn. Domestic violence does not fall within the jurisdiction of the employment relationship and an employer will not have any right to interfere or intervene in such matters.
• The victims of domestic violence are encouraged to report such abuse to the authorities and obtain assistance and support to remove themselves and other vulnerable dependants from the situation.
• It is acknowledged that being exposed to this type of domestic situation will have a negative impact on an employee at work and may result in absenteeism and impact on productivity. It is advisable to bring the domestic situation to the attention of a trusted manager or HR professional at work to ensure an emphatic understanding of the circumstances. The company may also be in a position to refer the affected person to organizations providing counselling or through an Employee Assistance Programme and in this way, provide, assistance to victims of domestic abuse and prosecution of the abuser.

Organisations that can provide help

• If no investigation is conducted or the outcome of the workplace-related, gender-based violence investigation is not satisfactory, you may report the incident to the CCMA in terms of the provisions of the EEA, within six months from the date of the incident.
• Contact the CCMA at 0861 16 16 16 or download the APP #CCMAConnect to refer a dispute.
• Incidents of domestic gender-based violence must be reported to the relevant authority, e.g., the SA Police Service, the Equality Court, and the Human Rights Commission.
• The Department of Justice provides details of organisations that may assist victims of GBV. These include:
  • The GBV Command Centre: 0800 428 428
  • The STOP Gender Violence Helpline: 0800 150 150
  • The TEARS Foundation: Free USSD helpline *134*7355#
  • People Opposed to Women Abuse(POWA): 011-642 4345
  • SAPS Emergency number: 10111

Do employees have the right to go on strike?

In terms of the Constitution of the Republic of South Africa, 1996 (the Constitution) employees have the right to strike.

Section 23(2) of the Constitution states that:[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column css=”.vc_custom_1548227501483{background-color: #dddddd !important;}”][vc_column_text]Every worker has the right –

(a)  to form and join a trade union;

(b)  to participate in the activities and programmes of a trade union; and

(c)  to strike.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]Before the Constitution, employees were free to strike, but did not have a right to strike. This meant that the law did not protect them if they went on strike. They could be dismissed because in terms of the common law a strike breaches the contract of employment.

The Labour Relations Act 66 of 1995 (LRA) protects employees who participate in a strike from being dismissed, provided the strike complies with the type of dispute and the procedures that are set out in the LRA. These strikes are known as ‘protected strikes’.

Where employees take part in a strike that does not comply with the requirements of the LRA, they run the risk of engaging in an ‘unprotected strike’, which has consequences.

What is a strike?

The LRA defines a strike as “The partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or who have been employed by the same employer or by different employers, for the purposes of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and any reference to “work” includes overtime work, whether it is voluntary or compulsory.”

In terms of this definition employees will be on strike if:

• they stop work completely; or
• there is a partial refusal to work.

There will be a partial refusal to work if, for example, they work slower than normal (go-slow) or if the employees refuse to work overtime (overtime ban), whether or not the overtime work is voluntary or compulsory.

The word “concerted” means that the employees must act together in their refusal to work. If a single employee stops working, it will not amount to a strike.

The refusal to work must be in order to sort out a dispute about any matter of mutual interest between an employee and an employer where the parties have been unable to reach an agreement through collective bargaining and conciliation by the CCMA or a bargaining council.

What is a matter of mutual interest?

Labour disputes can be broadly classified into disputes of right and disputes of interest. Each involves a different procedure to process.

An interest is something, which a person wants, but is not entitled to yet. Interest disputes involve negotiation. If agreement is not reached at a conciliation hearing, and where it concerns more than one employee, the parties involved may resort to the exercise of industrial power in the form of strikes and lockouts to achieve their interests.

Examples of issues that are disputes of interest:

• wage disputes – for example, a wage demand for a 10% increase;
• a dispute over a change to terms and conditions of employment.

[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]

In terms of section 65 of the LRA employees cannot strike under the following circumstances:

• Where there is a collective agreement that says employees who are bound by the collective agreement cannot strike in respect of the issue that the employees and employers are in dispute about.
• Where an agreement says that the dispute must be referred to arbitration.
• Where the employees have the right to refer the dispute to arbitration or the Labour Court in terms of the LRA (e.g. an unfair labour practice or an automatically unfair dismissal dispute). This does not include a dispute about organisational rights. In organisational rights disputes, registered trade unions, have the option to refer the dispute to arbitration or to go on strike in the event that no agreement has been reached to resolve the matter at conciliation.
• If there is an arbitration award, collective agreement or a determination in terms of the Basic Conditions of Employment Act 75 of 1997 that controls or regulates the issue in dispute. A determination made in terms of the Wage Act that regulates the issue in dispute, will bind the parties to it for the first year of that determination.
• Employees engaged in essential services are excluded from taking part in strike action unless they are subject to a minimum services agreement. Likewise, a determination by the Essential Services Committee on whether part or the whole of an employer’s business is a maintenance service, may specify whether all or a specific number of these employees are prohibited from taking part in strike action.
• Where the strike is based on an unlawful demand.

What is a protected strike?

A protected strike complies with the type of dispute and procedure that is required in terms of section 64 of the LRA.

A strike will be protected if:

• The issue in dispute or circumstances (see above) are such that strikes are permitted.
• The dispute has been referred to a bargaining council or the CCMA for conciliation and-
• the matter remains unresolved after conciliation and a certificate of outcome is issued by the CCMA or the bargaining council; or
• where, despite the referral to the CCMA or bargaining council, the matter has not been heard and 30-days have passed without any agreement to extend this period by the parties concerned (no certificate of outcome is necessary).
• The employer in the private sector is given at least 48 hours’ notice of the strike.

How are employees protected if they take part in a protected strike?

Employees who take part in a protected strike are protected from dismissal.

If an employer dismisses an employee for participating in a protected strike, such a dismissal may be found to be automatically unfair and the employee may refer the dismissal to the CCMA or a bargaining council for conciliation, followed by a referral to the Labour Court for adjudication in the event that the dispute remains unresolved.

All the usual rules for misconduct apply during protected strike action. Employees found to have committed acts of gross misconduct during a strike are not protected from dismissal.

An employer is entitled to employ replacement or “scab workers” during a strike (unless the whole or part of the employer’s services has been designated as a maintenance service, or there is an offensive lockout by the employer).

An employer does not have to pay an employee his/her wages, salary or benefits during a protected strike.

If the employee’s accommodation and food form part of his/her wages (this is known as payment in kind), the employer may continue to provide the employee with accommodation and food, if this is requested by the employee, but the employer may reclaim the cost of this after the strike.

What is an unprotected strike?

If employees go on a strike without following the procedures or for the permissible reasons or circumstances that are required by the LRA, such a strike is considered to be an unprotected strike. This type of strike is also called a “wildcat strike”.

What will happen if employees go on an unprotected strike?

The consequences of engaging in such an unprotected strike include:

• The employer may apply to the Labour Court for an interdict to stop employees from taking part in the strike. An interdict is an order of the Labour Court that prevents the employees from continuing to take part in the strike.
• The Labour Court can order the union to pay the employer for any financial losses suffered as a result of the strike.
• Taking part in an unprotected strike is considered to be a fair reason to dismiss an employee in terms of the LRA provided the employer complies with the required standards of procedural and substantive fairness.

What is a lock-out?

Section 64(1) of the LRA states that:

[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]