Protection orders at work: what counts as harassment and what doesn't

Employees facing disciplinary action are taking out protection orders against the managers disciplining them, an employment lawyer has warned, and a breach of one of those orders is a criminal offence that can carry up to five years in jail.

Rod Harper, head of employment law at Gottschalk Attorneys, told The Citizen that workers who are "correctly disciplined" for misconduct or poor performance are starting to use orders under the Protection from Harassment Act as a defence. He said he is handling one such case.

The law still protects workers who are genuinely harassed at work. Here is what the Act actually says, and what each side can do.

What counts as harassment under the Act?

The Protection from Harassment Act 17 of 2011 defines harassment as conduct the person knows, or ought to know, causes harm or makes you reasonably believe harm may be caused. It covers unreasonably following, watching or confronting someone, including near where they work; unreasonable calls, messages, emails or other communication aimed at them; sending or leaving letters or objects for them; and sexual harassment.

"Harm" in the Act includes mental, psychological, physical and economic harm.

The key word is unreasonable. When a court decides whether conduct was unreasonable, the Act says it must consider, among other things, whether the person was complying with a legal duty. Harper's view, reported by The Citizen, is that "reasonable managerial conduct, performance management and enforcement of workplace rules do not constitute harassment", and that raising your voice is not harassment either.

How does a protection order work?

You apply at a magistrate's court by filling in an application form and listing every incident. You don't need a lawyer, according to the Department of Justice. The clerk of the court must also tell you that you can lay a criminal charge, such as crimen injuria or assault, alongside the application, the Act says.

Sources: Protection from Harassment Act, Department of Justice

Why are managers worried?

Depending on the conditions a magistrate sets, an order can limit contact, communication and how close one person can come to another. Harper told The Citizen that this can make it hard for a manager to supervise the employee, give instructions or take part in a disciplinary hearing without risking a breach.

He also said magistrates "often have little knowledge of employment law in the private sector", and that managers can get an unexpected visit from police serving court papers.

What can a manager do if an order is taken out against them?

Turn up on the return date. If the respondent doesn't appear and the papers were properly served, the court must grant a final order if the application shows prima facie evidence of harassment, the Act says. If you oppose it, the court hears the evidence before deciding.

Harper said managers can oppose these applications and put evidence of the employment relationship before the court. He advised employers to give legal help to managers facing proceedings over their normal duties, and to review grievance policies so internal remedies are tried first, The Citizen reported.

Under the Act, a court can order legal costs against a party only if it finds they acted frivolously, vexatiously or unreasonably. Harper said misusing the Act could itself amount to misconduct.

What if you are being harassed at work?

The protection is still there. Harper acknowledged that "on occasions the complaint can be valid", and the Act applies to workplace harassment, including sexual harassment. Keep the originals of any messages, photos or recordings, because the application form asks you to attach copies and keep the originals as evidence.