Partner, and Nonjabulo Mthembu, Associate from Webber Wentzel argues in this contributed article whether employers can rely on the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (Code) in managing strike-related misconduct and, in particular, engagements with trade unions in seeking to quell such conduct. This is Part 1 of a two-part article.
Employers trying to tackle violence related to industrial action have traditionally reacted with court proceedings and disciplinary action once such action has taken place. Employers should consider taking more proactive steps, including agreeing on picketing rules incorporating the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace
Violence and unlawful conduct in the context of industrial action is a reality in South Africa.
Increasingly, there appears to be nowhere for employers to turn as they seek to manage violent industrial action.
As South Africa reels from the economic and human cost of the protracted Transnet strike that ended in mid-October 2022, we discuss whether employers can rely on the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (Code) in managing strike-related misconduct and, in particular, engagements with trade unions in seeking to quell such conduct.
Various trade unions have welcomed the introduction of the Code and have expressed their commitment to its objectives. Industrial action in South Africa, however, continues to be characterised by intimidation and violence by union members. It is often instigated by trade union leadership or, at least, not actively discouraged. Support for, or apathy towards, violent and unlawful conduct by trade union members is irreconcilable with the stated objective of the Code to eliminate all forms of harassment in the workplace and in any activity linked to or arising out of work.
The Code, issued in terms of the Employment Equity Act (EEA), requires employers to take steps to prevent and eliminate harassment. It describes harassment as unwanted conduct which impairs dignity and creates a hostile or intimidating work environment for one or more employees or is calculated to, or has the effect of, inducing submission by actual or threatened adverse consequences and is related to one or more of the grounds in respect of which discrimination is prohibited.
Throwing stones, carrying dangerous weapons, blocking workplace entrances, making death threats to management or members of rival trade union members and any threats to or intimidation of non-striking employees from attending to normal business operations could all fall into this category, which is wider than the Code’s predecessor (that only dealt with sexual harassment). Even strike-related conduct that does not amount to ‘physical harassment’ as described in the Code could still be regarded as bullying, mobbing or ‘intimidation’, which is described as “intentional behaviour that would cause a person of ordinary sensibilities to fear injury or harm”.
The Code does not place obligations on trade unions that are enforceable under the Code or the EEA, but it does accept that trade union representatives could be the perpetrators (or victims) of harassment. It tries to encourage trade union involvement by acknowledging that:
- trade unions are obligated to refrain from committing harassment
- trade unions have a role to play in contributing to a working environment in which harassment is unacceptable, by ensuring that standards of conduct do not cause offence and by discouraging unacceptable behaviour
- trade unions should, with employers if appropriate, implement awareness training initiatives to educate employees and shop stewards at all levels about harassment. Compliance should be reinforced and maintained through ongoing awareness programmes
Continued in part two…