South Africa: Employers' Role In Addressing Gender-Based Violence

Gender Based Violence ("GBV") is a pervasive issue within the South African context. Defined as "violence associated with gender, which includes physical, sexual, verbal, emotional, economic, educational or psychological abuse or threats of such acts of abuse in public or private life", the unfortunate reality is that as a society, not enough has been done to assist in eradicating GBV.

With thousands of reported cases of GBV last year, the question that arises from a labour law or workplace perspective is: How can employers play a meaningful role in addressing or eradicating GBV?

In this article, we consider two different settings in which GBV can arise and then tackle what an employer can do about GBV, from the viewpoint of assisting victims and taking appropriate action against perpetrators.

GBV in the workplace

In respect of GBV that occurs in the workplace, many employers adopt a zero-tolerance approach. While a clear policy statement on an employer's stance against GBV is helpful in communicating the right message, and the issue ideally should be addressed in company disciplinary codes and procedures, an express written rule against conduct of this this nature does not necessarily need to be in place in the form of a rules or policies before an employer can elect to take disciplinary action against a perpetrator.

However, more is required than just having policies in place that are essentially mere rhetoric and that are ineffective. True progress towards eradicating violent conduct towards women, or assisting victims, is taking concrete action to prevent it from occurring and addressing specific incidents.

GBV committed on the employer's premises goes to the very root of the trust relationship and inevitably results in a breakdown in the relationship between the perpetrator and employer. In light of this, the summary dismissal of the perpetrator would in most instances be warranted.

In respect of the victim, the harm (be it physical, psychological, emotional) that they suffered as a result of the GBV at the workplace can be classified as an "injury on duty". As such, an employer will then have a greater obligation to assist and support the victim and to accommodate them to the extent that they may be temporarily incapable of properly performing their duties. The victim can also claim compensation in terms of the Compensation for Occupational Injuries and Diseases Act ("COIDA").

in response to the GBV crisis in South Africa, two recent developments intended to assist employers addressing these issues in the workplace have emerged.

The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace ("Code") was published under the Employment Equity Act, 1995 ("EEA") and has been in effect since 18 March 2022. The Code specifically recognises GBV as a form of harassment, which is prohibited by the EEA. Although the Code is only a guideline on addressing and eliminating harassment in the workplace, and is not binding legislation, the extent to which employers have complied with it will inevitably be considered when determining whether an employer should be held vicariously liable for the conduct of perpetrators of harassment (including GBV) in terms of section 60 of the EEA. The Code implores employers to have clear policies and effective practices in place to manage and eliminate harassment within the workplace.

In addition, ff GBV takes place at an employer's workplace or while employees are at work, the EEA requires an employer to consult with relevant parties and take all necessary steps to address and eliminate these acts of harassment. Employers could be held liable for incidents of GBV that do occur if they have failed to take these necessary steps (both proactive and reactive) in terms of the EEA. Employers can also be held vicariously liable for acts committed by their employees in the course and scope of their duties in terms of the common law.

More recently, the National Council on Gender Based Violence and Femicide draft bill was published on 30 September 2022 ("draft Bill"). The purpose of the draft Bill is to establish a national council that will work in corroboration with relevant stakeholders towards eliminating GBV and femicide in South Africa,. The draft Bill recognises that employers ought to play a role in assisting with the eradication.

Employers, as responsible corporate citizens, should play an active role in addressing GBV. They should create awareness and conduct proper training in respect of GBV inside the workplace as well as explore the possibility of participating in education and awareness campaigns outside of the workplace and in the communities in which they operate.

In our view, awareness and training start with addressing certain gender norms and stereotypes. In addition, these training and awareness programmes should educate employees on the legislative provisions and remedies available to assist victims of GBV such as the Protection from Harassment Act and the Domestic Violence Act. This should include practical guidance on steps that can be taken by victims in these situations such as obtaining a protection order against the perpetrator.

Employers should also consider appointing designated individuals that can assist employees who are victims of GBV and consider contracting with employee health and wellness service providers that can provide counselling and assistance. Helplines and emergency contact details should also be easily accessible to employees. In general, employers should endeavour to create a safe space for employees to raise concerns and issues around GBV.

GBV outside of the workplace

In the world of remote working, what constitutes "the workplace" is no longer clear-cut. The Occupational Health and Safety Act ("OHSA") provides that employers must provide a working environment that is safe and without risk. Where an employee works from home, that employee's home becomes his or her workplace under OHSA and the Code. In circumstances where an employee is a victim to GBV during working hours within his or her "workplace" and where an employee, as a victim reaches out for help, an employer is required to take all reasonably practicable steps available to it to assist. In circumstances where GBV is suspected but the employee has not informed their employer, the employer cannot take action against the perpetrator unless the perpetrator is also an employee and the employer has sufficient evidence of misconduct.

In circumstances where the preparator is an employee and committed acts of GBV outside of the workplace, the employer can consider whether it can take disciplinary action against the employee for "off duty misconduct." Even though the kneejerk response from employers may be to simply want to take disciplinary action against the perpetrator, especially in the case of serious incidents of GBV outside of the workplace, it's not always simple for an employer to establish a basis for doing so. Item 7(a) of Schedule 8 of the Code of Good Practice: Dismissal, provides that disciplinary action may be taken against employees where there has been a contravention of a rule regulating conduct in the workplace, or of relevance to the workplace. The test for determining "relevance" to the workplace is that:

• there must be a link or nexus between the conduct complained of and the employee's duties, the employer's business or the workplace; and
• the employer must have a sufficient and legitimate interest in the conduct or activities of the employee outside working hours or outside the workplace.

The difficulty for an employer is often establishing this "nexus". An example of where this nexus may be established is when an employee commits acts of GBV while still in work uniform and can easily be identified as an employee or where the conduct is directed at a colleague even though this occurs outside of work. Where an employer does have a clear code of conduct in place in terms of which it has clearly communicated that conduct of this nature is contrary to its values, morals and ethics and would have a serious detrimental impact on the employment relationship, an employer could rely on this breach of well established values and ethics as a basis for taking action against the perpetrator.

In closing it is clear that employers have a vital role to play in taking all necessary steps available to them to assist in eradicating GBV in the workplace and also to consider more carefully what they can do to also prevent its occurrence outside of the workplace or at the very least to do what they can to assist victims.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.