Is there a legal duty on employers regarding
gender-based violence and harassment?

Most people think of violence as a physical assault, however, workplace violence is a much broader problem. It is any act in which a person is abused, threatened, intimidated or assaulted in his/her place of employment.

Workplace violence in most instances is based on gender, thus making it gender-based workplace violence. We look at what workplace violence means.

Threatening behaviour
Threatening behaviour include shaking fists, destroying property, throwing objects, hitting a worker, sexual violence, or threats whether conveyed verbally, in writing, or through behaviour. A customer, client, co-worker, supervisor, or stranger could be violent or threaten to be violent in the workplace.

Physical force
The exercise or attempt to exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker.

Statement or behaviour
A statement or behaviour that is reasonable for a worker to interpret as a threat to exercise physical force against the worker that could cause physical injury to the worker in the workplace.

Domestic violence
Domestic violence at the workplace.

Workplace harassment means engaging in annoying, irritating/troublesome comments or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.

Workplace sexual harassment means engaging in a course of upsetting comments or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the cause of the conduct is known or ought reasonably to be known to be unwelcome.

Sexual solicitations or advances by a person in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.

Other things might include spreading of rumours about a person, or insulting them on the grounds of gender, race or disability etc. This is usually done in such a subtle way, that nothing specific can be pinpointed. It usually ends where the employee simply resigns but does not have sufficient grounds or substance to bring a dispute of constructive dismissal against the employer. In certain extreme instances it has even been a cause for suicide.

In most instances, employees who engage in such actions would fall foul of not only the legal duties of employees but also specific internal disciplinary codes of conduct. There is an obligation on employers to prevent workplace violence in much the same way that there is a positive duty on employers to implement a policy against sexual harassment in the workplace.

Every individual has the right to be treated with dignity and respect in the workplace. Employers, in fact, have a duty to protect their employees from all forms of harassment, and should have a company policy in place to handle such issues.

Harassment can also, and usually does, constitute an unfair discrimination. Further problems caused by harassment may include a violation of human rights.

MISA members who are exposed to workplace gender violence, harassment and any other form of workplace violence may seek assistance from MISA.

By Thandeka Phiri, National Training Manager, Misa

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