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Chapter 6 - Labour Law

Other laws that apply to terms and conditions in the workplace

Employment Equity Act (No 55 of 1998)

The Employment Equity Act (EEA) aims to create an environment of equality and non-discrimination in the workplace. It states grounds for non-discrimination in the workplace including:

• Race
  
• Gender
  
• Sex
  
• Pregnancy
  
• Marital status
  
• Ethnic origin
  
• Social origin
  
• Colour
  
• Sexual orientation
  
• Age
  
• Disability
  
• Religion
  
• Conscience
  
• Belief
  
• Culture
  
• Language
  
• Birth
  
• Family responsibility
  
• HIV status
  
• Political opinion

The EEA is important because it includes three grounds for non-discrimination that are not included in the Constitution or the Equality Act: family responsibility, HIV status and political opinion. A case can be referred to the Labour Court if an employee believes that an employer is discriminating against him or her on any of these grounds in order to:

• demote or not promote the employee
  
• block the employee from having access to training and development
  
• make an unfair distribution of employee benefits to the employee

The EEA also sets out regulations on affirmative action in the workplace to create equal opportunities for all employees and for people applying for jobs. It says that an employer who employs over 50 people or has a turnover of over a certain threshold , must take steps to include and advance, previously disadvantaged groups (black people, women and the disabled) in their workforce. This involves setting up an Employment Equity Committee which works to improve equal opportunity in the company, promote equal opportunity and remove unfair discrimination,

So, when a company makes new appointments or promotes staff, it must give ‘preferential treatment’ to properly qualified people who are from one of these previously disadvantaged groups, (female, black of disability) . In other words, formal qualifications or relevant experience are not the

The EEA covers everyone except the South African National Defence Force (SANDF), the National Intelligence Agency (NIA) and Secret Services.

The Occupational Health and Safety Act (No 85 of 1993) (OHSA)

The OHSA gives employees specific rights in health and safety at work. It gives health and safety guidelines for the workplace to employers and gives inspectors wide power to ensure that these are being implemented. See the following website for an easy guide to OHSA and the Regulations: www.labour.gov.za/docs/legislation/ohsa/ohsbooklet.html

Who does the OHSA cover?

The Act excludes employees in mines and on ships, where other laws apply. The OHSA covers all other employees, including farmworkers, domestic workers and state employees.

The employee's duties

Employees must take reasonable precautions over their own health and safety at work. They must follow precautions and rules about safety and health. They must report any unsafe circumstances or accident as soon as possible to the safety representative. Anyone who acts in a reckless way or damages any safety measures can be charged and a claim for damages can be brought against them.

The employer's duties

The employer must make sure that the workplace is safe and healthy, and must not allow any employee to do work which is potentially dangerous. The employee must know what the dangers of the work are. The general duties of the employer are to:

• choose safety representatives
• consult with the employees'  trade union about the safety representatives
• inform employees of the dangers in the workplace
• reduce any dangers to a minimum before issuing protective clothing
• issue protective clothing where necessary
• give necessary training to employees who use dangerous machines or materials, to make sure they know the safety precautions
• prevent employees from using or working with dangerous materials or machines, unless all the necessary safety rules have been followed
• ensure that dangerous machines are in good working order and are safe to work with
• make sure that dangerous machines carry warnings and notices
• make sure that someone who knows the work is supervising the operations to ensure the safety of the employees
• keep the workplace open so that employees can escape from danger if necessary
• not move any evidence of an accident before an inspector has given permission, unless someone has been badly injured and needs treatment

The Chief Inspector can ask any employer for a report of the safety precautions.

An employer cannot take action against any workers who do the following:

• give information about their conditions at work or that the Act says they have to give
• give evidence in court
• respond to any request of an inspector
• refuse to do anything that is against the law

Reporting accidents or incidents

The employer must keep a report of all accidents and safety or health incidents in the workplace. The employer must report certain accidents or incidents to the safety representative and to the Department of Labour.

Safety Representatives and safety committees

The employer must appoint one safety representative for every 20 employees. There must be at least one representative for every 50 employees. The employer must explain to the employees' organisation what responsibilities the safety representatives will have and how the representatives will be selected.

In every workplace where there are two or more safety representatives there must also be a safety committee. This committee must meet at least every three months. The committee must deal with all safety and health issues that affect employees. The safety committees have certain functions and powers. You can find out more about these in the Act or by contacting the Department of Labour.

Enforcement of the OHSA

OHSA falls under the administration of the Department of Labour. Inspectors from the Department have wide powers to search the workplace, question people, ask for explanations from an employer, and so on.

An inspector can fine a person for breaking the Act. If that person wants to appeal against the inspector's decision, they can appeal to the Chief Inspector. They can appeal against the Chief Inspector's decision in the Labour Court.

If an employee is hurt at work as a result of the employer not following a safety regulation, then that employer can be fined up to R100 000 and /or two years in prison.

Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace

The 2005 Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace defines sexual harassment and refines procedures on managing such complaints.

One of the most difficult aspects of sexual harassment at work is the balance of rights. In the first place the right to personal dignity of the victim has been infringed. Everyone has a right to a safe working environment which includes not being harassed. On the other hand, the alleged perpetrator also deserves fair treatment. ‘Fair treatment’ means that he or she should only be disciplined after the allegations have been investigated and the evidence supports the allegations of harassment.

What is sexual harassment?

Sexual harassment is defined in the Code of 2005 as:

‘unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace’ and takes into account the following factors:

1. Was the conduct on prohibited grounds (sex, gender or sexual orientation)?
2. Was it unwelcome? Ways to show behaviour is unwelcome include verbal and non-verbal actions like walking away or not responding to the harassor.
3. What was the nature and extent of the sexual conduct?  The conduct can be physical, verbal or non-verbal.

• Physical includes unwelcome physical contact ranging from touching to sexual assault and rape as well as strip search by or in the presence of the opposite sex.
• Verbal includes unwelcome  suggestions, hints, sexual advances, comments with sexual overtones, sex-related jokes or insults, graphic comments about a person’s body made in their presence or to them, inappropriate enquiries about a person’s sex life, whistling of a sexual nature and sending sexually explicit text by electronic means or otherwise.
• Non-verbal includes unwelcome gestures, indecent exposure and displaying or sending sexually explicit pictures or objects

 The conduct can also be victimization where a person gets victimized for failing to respond to sexual advances and the intention is to humiliate him or her; or sexual favouritism – ‘rewards’ for sex.

4. What was theimpact on the employee?  This is a subjective test and involves looking at the effect of the action on the victim’s dignity. It takes into account the circumstances of employee and the positions of power between the victim and alleged harassor

Sexual harassment as a form of unfair discrimination

The Code says that sexual harassment is a form of unfair discrimination and that harassment on the grounds of sex and/or gender and/or sexual orientation is prohibited.

Test for sexual harassment

The Code defines which factors must be taken into account when deciding whether an action constitutes unwelcome conduct. It gives guidelines as to what constitutes sexual harassment and explains what is understood by ‘nature and extent’ of the conduct (see definition of ‘unwelcome conduct’).

When it comes to the impact of the conduct, the code says the conduct must be an impairment of the employee’s dignity and the relevant considerations here are the circumstances of the employee and the positions that the employee and the alleged harassor hold in the organisation.  When assessing the impact of the conduct, the test is a subjective one where the focus is not only on the actions that constitute sexual harassment, but more substantially on the effects and the circumstances surrounding these actions. So, it requires the employer to look at the psychological impact of the sexual conduct on an employee and not only at how an objective person might judge the action.

Digital harassment is also conduct that can constitute sexual harassment.

Sexual harassment policies and procedures

The Code requires the employer to adopt a sexual harassment policy and says what should be included in this policy, for example:

• that sexual harassment constitutes unfair discrimination, that it infringes the rights of the complainant and that it represents a barrier to equity in the workplace;
• that sexual harassment in the workplace will not be permitted or condoned;
• complainants have the right to follow the procedures in the policy and appropriate action must be taken by the employer;
• that it will constitute a disciplinary offence to victimize or retaliate against an employee who in good faith lodges a grievance of sexual harassment.

The policy should also outline the steps and the procedures to be followed by a complainant who wants to lodge a sexual harassment complaint or grievance. The Code sets out the procedures that should be followed when a complaint of sexual harassment is made.

Procedures for dealing with complaints of sexual harassment

The Code says the following  procedures should be included in the policy:

1. Reporting sexual harassment – Conduct involving sexual harassment must immediately be reported to the employer. ‘Immediately’ means ‘as soon as is reasonably possible in the circumstances’ and without delay, taking into account the nature of sexual harassment (as a sensitive issue), the fear of a negative response, and the positions of the complainant and the alleged harassor in the workplace.
2. The employer must do the following:

• consult the parties
• take steps to address the complaint
• take steps to stop the sexual harassment

Implementing formal  procedures without the consent of the complainant

The Code says that a complainant can choose to follow a formal procedure or an informal procedure. If the complainant chooses NOT to follow a formal procedure, the employer should still assess the risk to other people in the workplace. The employer must take into account all relevant factors, including:

• how serious the alleged sexual harassment was, and
• whether the alleged harassor has a history of sexual harassment.

If the employer believes after a proper investigation that there is a serious risk of harm to the people in the workplace, he or she can follow a formal procedure, regardless of what the complainant wants. The complainant must obviously be informed of this.

When is an employer liable in a case of sexual harassment?

Employment Equity Act (EEA)

If an employer is liable for sexual harassment this could have severe financial implications.

Section 60 of the EEA says that if an employee, while at work, engages in any conduct that goes against the Act (for example, sexual harassment), then the conduct must immediately be brought to the attention of the employer.

The employer must consult all relevant parties and take necessary steps to stop the conduct. If the employer fails to take the necessary steps and it is proved that the employee is guilty of sexual harassment, then the employer will be liable for the conduct.  

However, if the employer can prove that he or she did everything that was reasonably possible to create an environment free of sexual harassment, for example, by adopting a sexual harassment policy and communicating this to the workplace, then these actions could shift the liability of the employer.

Common law

An employer can be liable in terms of the common law if he or she does not provide a safe working environment. In the Media 24 Ltd and another v Grobler case, the court held that the employer has a legal duty to take reasonable steps to prevent sexual harassment of its employees in the workplace and is obliged to compensate the victim for harm caused because of this.

The court also said that if a person gets Post-Traumatic Stress Syndrome arising out of or in the course of employment, the victim would have to claim compensation under the COIDA and would not be able to proceed with a civil claim against the employer.

What is the role of a trade union in dealing with sexual harassment in the workplace?

Management has certain obligations in terms of the Code which the trade union needs to see are enforced. These include:  

• Adopting a sexual harassment policy in line with the 2005 Code

The Code does not say how a policy should be adopted but certainly it should be done in consultation with union representatives and employees.

The failure to adopt a workplace policy could impact on the employer’s liability in the future.

• Communicate the policy to employees

An employer must communicate the policy effectively to employees. The employer must therefore take active steps to provide education and training on sexual harassment and people’s rights and obligations in the workplace.

• Conduct investigations

When management is informed of a sexual harassment complaint it must:

• consult all relevant parties
• take necessary steps to address and eliminate the sexual harassment. These steps include:
• informing the complainant that he/she can follow formal or informal procedures to  deal with the complaint,
• offer the complainant advice, assistance and counseling
• advise the complainant of the procedures to follow whether this is in an informal or formal way

Create an environment that is free of sexual harassment

Management must aim to create an environment that is free of sexual harassment by: having a sexual harassment policy, communicating the policy to employees and dealing effectively and in terms of the policy with cases brought to its attention. This obligation also means implementing formal procedures where the risk is serious to other employees (even where the complainant has no wish to proceed with action).

The Merchant Shipping Act

The Merchant Shipping Act 57 of 1951 says that the Labour Relations Act and the Wage Act apply to all employees at sea. It says that if there is conflict between the provisions of the MSA and the provisions of a Bargaining Council Agreement or Wage Determination, the provisions of the Agreement or Determination will apply.

The MSA covers employees who are at sea within South Africa’s territorial waters. If employees at sea are outside the territorial waters of South Africa, then an Agreement or Determination will apply to the following employees:

• who are employed on a ship which is registered in South Africa
• who, even if the ship is not registered in South Africa, are employed on a ship which spends all its time working between ports in South Africa.