The regulation of harassment and violence in the South African workplace

Abstract

South Africa has a brutish history with violence and harassment in the workplace. Patriarchal views and traditions exacerbate the suffering of woman. Though legislative interventions provide some recourse for victims, the legal framework is complex, proliferated, and inaccessible to the most vulnerable in society. It is argued that South Africa should rather adopt a preventative approach by tackling the root causes of violence and harassment as opposed to merely relying on punitive measures to eradicate these ills. The Draft Code of Good Practice on the Prevention and Elimination of Violence and Harassment in the World of Work can be lauded for defining the different types of harassment that an employee may experience in the workplace. It however casts the net too wide by burdening employers with third-party liability. If it is nevertheless passed in its current form, South Africa can borrow from earlier UK jurisprudence that found claims for direct discrimination apply only in those instances where employers could have reasonably prevented third party harassment from occurring, or if the employer's failure to protect employees from harassment by third parties was discriminatory in itself. This dissertation proposes that redress for victims of violence and harassment would be better suited under occupational health and safety legislation and the common law. Great scope exists for maximising preventative activities under the statutory workplace compensation scheme as it has already been held that psychological injuries are as much a personal injury as physical injuries. Finally, it is proposed that the legislator engage with the idea of broadening the definition of ‘employee’ in line with modern work arrangements and international norms to ensure that all workers are protected in the workplace.