Bullying or harassment is becoming very prevalent source of conflict in the modern South African workplaces. Every employee has the right to be treated with dignity and respect in the workplace employers have a duty to protect workers from harassment,and employers should develop a code of conduct on harassment in consultation with the employees and employee representatives.
Bullying in the workplace is not specifically defined or referred to in any of the legislation but can be defined as conduct of an employee or an employer or a group of employees and employers, directed at an employee, employer or groups of employees or employers, which a reasonable person would find hostile or offensive and is unrelated to an employer’s legitimate business interest. This may include but is not limited to repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, labels, verbal or physical conduct that a reasonable person would find threatening, intimidating, humiliating or creates a risk to health or safety or relates to the gradual sabotage or undermining of a person’s work performance.
Why should Employers care?
Section 6(2) of the Labour Relations Acts provides that "Harassment of an employee is a form of unfair discrimination and is prohibited on anyone. Generally, bullying will be recognised as harassment, and therefore unfair discrimination.
Bullying being recognised as a form of harassment, and to be dealt with in terms of the Employment Equity Act as unfair discrimination, was also confirmed in Private Sector Workers Trade Union on behalf of Opperman and Gerrie Ebersohn Attorneys (2019) 40 ILJ 1159 (CCMA).
As such, it is an Employer’s obligation to protect their employees from bullying.
What can and should Employers do about bullying?
As an Employer, you need to protect your position by having anti-bullying or anti-harassment policies and ensuring that each and every employee is aware of such policies. These policies should cover all aspects of bullying including making provisions against bullying by managers and/or employees. Maintain your professional platform of knowledge and competence and make decisions which are fair to all concerned.
Employers tend to not follow the appropriate procedures when faced with a decision to terminate the employment of certain employee or when they have decided they need to get rid of certain employees for operational reasons. They tend to “bully an employee out” instead of following the appropriate Labour guidelines This will have dire consequences if the employee decides to take legal action against you as an employer.
In the case of Mkhize and Dube Transport (2019) 40 ILJ 929 (CCMA) the employee had alleged that the HR manager of the employer was bullying and victimising her, both inside and outside of the workplace, and that although she had ultimately been dismissed for medical incapacity, the employer had actually sought to use this as a convenient method to get rid of her, after having lodged a grievance about the bullying allegations.
Employers should be aware that instances of workplace bullying should be dealt with quickly and decisively and that bullying should not be tolerated in the workplace, as a failure to do so may expose the employer to up to 24 months remuneration if the employee is found to have been dismissed due to the bullying, and unlimited compensation claims if the employee is found to have been the victim of unfair discrimination due to the bullying.
How can we help Employers?
- Assess the organisation holistically and draft a harassment report
- Facilitate anti-discrimination workshops
- Create anti-discrimination policies
- Provide anti-discrimination training
The information shared on this article/blog/vlog should be read and understood within the current legal framework of South Africa. It is meant purely for educational discussion and does not amount to legal advice. For specific legal advice, please consult a legal practitioner prior to application.