What is the legal framework for harassment? The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace published on 18 March 2022 (“The Code”) is the applicable Code for harassment cases and gives effect to the ILO Convention 190 concerning the Elimination of Violence and Harassment in the World of Work. Harassment is defined in the Code as a form of discrimination and prohibits it in terms of section 6(1) of the Employment Equity Act 55 of 1998.

Is this guideline for only discrimination harassment cases? No. This guideline can be used for any allegation of harassment, bullying, sexual harassment, and other harmful behaviour. It doesn’t have to fall within the definition of a listed ground of discrimination.

Can this guideline be used as a grievance procedure? Yes. It must however comply with your applicable policy and procedure and/or the collective agreement in place. Or you can use this as a guide to amend your policies and procedures.

Can Tokiso assist in reviewing policies to ensure compliance? Yes.

What is an investigation? An investigation (also known as fact-finding) is a systematic collection of facts for the purposes of describing what occurred and explaining why it occurred. An investigation is usually initiated because a party or parties are facing a situation of (1) conflicting information and/or (2) a lack of information and need an objective finding on the facts.

Why investigations for harassment grievances? Investigations, as opposed to hearings, offer a flexible process to understand the nuances of the issues, less combative in nature and provide options to find amicable solutions. It is a more effective process to secure confidentiality and manage communication. Also, should disciplinary action arise from the grievance, it means the witnesses only have to endure testifying in the disciplinary hearing.

How do I diagnose the issues and scope the process? Tokiso has standard terms of reference template to assist in determining the investigation process and identifying the scope of the investigation, which content is guided by the complaint received. Tokiso can assist in diagnosing the issues and drafting the terms of reference.

Can Tokiso assist in scoping the investigation? Yes. Tokiso shall do so without determining any substantive issues. Tokiso has a template for terms of reference that parties are welcome to request from Tokiso. Tokiso can also facilitate a meeting to determine terms of reference. Where the matter is complex and/or relates to a sensitive issue and/or involves several parties, Tokiso can also assist in appointing an appropriate panellist/s to conduct the investigation.

Who coordinates the interviews/document collection? This may be done by an internal company person if appropriate, otherwise, Tokiso can provide the coordination of the interviews and other support services.

Why use Tokiso for investigations? Tokiso is independent in its approach to investigations, and:
1. will never “build” against a person who is accused of harassment. It takes an independent, objective view of the matter;
2. respects the dignity of all parties in the manner the investigation is conducted;
3. Ensures compliance with the Code;
4. encourages informality over formality – in compliance with the policies and collective agreements;
5. encourages that, where appropriate, matters are resolved amicably or even by agreement; and
6. our philosophy is to promote best practices and sound labour relations.

How can harassment manifest? Tokiso’s experience is that complaints can arise through a union raising it, a grievance, the whistleblowing hotline, a complaint to another employee/rep, corridor gossip, an observation by HR / a manager, manifests from another process, arises in a culture / Employee survey, an exit interview, or a complaint to an external body.

Can Tokiso assist in preparing for and initiating hearings on behalf of the company/employee? No, this would conflict with Tokiso’s independence. But Tokiso can advise on policy and procedural matters.

How does one manage confidentiality? Tokiso’s approach to investigations and hearings for harassment are designed to protect not only the confidentiality but the dignity of the parties. The investigation process is done to reveal only essential information to those who are interviewed, and Tokiso assists with communication around the process. Where a disciplinary hearing conducted, only those who are essential to the process should be included in the process.

How does one manage fear in the process? Using an external person to conduct the investigation and any disciplinary action does give some assurance to parties. The parties should be encouraged to seek assistance from a union or fellow colleague. Reference to the protection assured in the Code, and seeking assurance from a senior manager that there will be no reprisals will also assist.

What will the report include? The report will include the investigation scope, methodology, submissions, analysis, findings, and where appropriate, recommendations. Recommendations may include inter alia, disciplinary and other actions, future prevention mechanisms, ways to improve relations and good practice, and how the report is to be communicated to parties.

What if other issues arise outside the terms of reference? The investigator will usually note these issues, without making any findings, and may make process recommendations on those issues. This could also be done in a separate report if appropriate or covers confidential issues that do not pertain to the issues identified in the terms of reference.

Who does the investigation report go to? The report will be sent to the person identified in the terms of reference, or as directed by the investigator.

What is the process to follow? Here is Tokiso’s diagrammatic representation of how to deal with harassment allegations (for harassment on a listed ground, including sexual harassment, and can be used for other forms harassment, bullying & hostility cases):

Can Tokiso assist in the steps of the formal procedure? Yes, both the investigation, any grievance process and any subsequent hearings or other recommended processes.

Can Tokiso assist with the informal procedure? Yes. Tokiso can facilitate the engagement to ensure that the rights of both the complainant and the alleged perpetrator are protected, fear is managed, and an amicable outcome is achieved.

What disciplinary procedure should be followed for harassment allegations? You can follow the ‘normal’ accusatorial disciplinary procedure as commonly followed in South Africa. Tokiso however recommends an inquisitorial approach to harassment cases, particularly sexual harassment cases. In these cases, an independent presiding officer directs the evidence and asks the questions of the witnesses, rather than the traditional leading of evidence and cross examination by the parties. Parties can submit questions to the chair to put to witnesses.

How can Tokiso help? Panellists and clients are welcome to contact Tokiso for advice and guidance on the process at 011 853 6300 or info@tokiso.com.