EMPLOYMENT Law teams from Cliffe Dekker Hofmeyr (CDH) on Wednesday discussed the important topic of harassment in the workplace, employers’ obligations, best practices and termination requirements across different jurisdictions in Southern Africa, East Africa, the UK and the Middle East region.
On the panel was Thabang Rapuleng, director of employment law at CDH, South Africa, Tendai Jangara, director of dispute resolution (Corporate Investigations), Imraan Mahomed, director of employment law CDH; Desmond Odhiambo, who is a partner to CDH in Kenya; Guy Guinan to CDG in London and Thenji Moyo – legal director and head of employment, based in Dubai.
The discussion unpacked matters concerning employers identifying harassment in the workplace.
Thabang Rapuleng, the director of employment law at CDH, said the concept of harassment was not a new concept in the workplace.
“As much as we did not have a code that specifically dealt with harassment (there’s one dealing with sexual harassment but not one dealing with workplace harassment) employees will describe tangible experiences of harassment without necessarily using the term or the language. They would use words such as ‘insulting behaviour, demeaning behaviour and abusive behaviour.’”
In identifying what constitutes harassment, Rapuleng said the Workplace Harassment Code has adapted the Sexual Harassment Code and implemented it.
“When you look at how harassment is defined, it is defined as unwanted conduct that impairs the dignity of a person. This definition is similar to the sexual harassment definition code. It is then unto the employer to conduct an investigation upon receiving or hearing of a complaint,” he said.
Tendai Jangara, director of dispute resolution at CDH, said it was important for those appointed to investigate a workplace harassment matter to be highly skilled in asking the right questions to get the needed information when dealing with the matter.
“We find that very often, the persons who are tasked with these investigations will either be your HR (Human Resources) people or someone external from the organisation. The level of skill that is required is understanding investigative procedures so that you can gather the level of evidence that can be used for these kinds of matters,” she said.
She added that the level of evidence in these matters would be on a balance of probabilities, but evidence was still required.
“We need to make sure that people who are tasked with investigating understand the code themselves and know how to do the actual investigation. The investigation would require you to speak to the victim in a manner that they can give you a full account of what has occurred. If they have evidence in the form of documents, witnesses, this means getting very clear statements. This way, you can corroborate what is being said,” she said.
In matters where it is difficult to acquire evidence as these matters happen behind closed doors, one needs to be able to ask the right questions.
“Have the person coming forth be able to give you a full account of what has happened. There are techniques involved in this where an investigator is able to get to the bottom of a matter,” said Jangara.
The discussion concluded with a Q and A session between attendees and the panel.