May 16, 2022

New case deals with bullying in the workplace in South Africa

Bullying is a phrase synonymous with the sort of conduct anticipated in faculty playgrounds. It’s not a phrase that’s often related with the workplace, notes Sibusiso Dube, companion at Bowmans South Africa.

Nonetheless, bullying in the workplace is prevalent such that the new Code of Good Follow on the Prevention and Elimination of Harassment in the Workplace (Code), which took impact on 18 March 2022, has positioned a constructive responsibility on employers to play their half in stopping bullying in the workplace, Dube mentioned.

By way of the code, Bowmans sated that bullying entails the abuse of coercive energy by a person or group of people in the workplace and should contain aggressive behaviour in which somebody repeatedly causes one other individual damage or discomfort.

“Bullying contains a variety of insulting, demeaning or intimidating behaviour that lowers the shallowness or self-confidence of an worker and could also be an escalating course of in the course of employment in which the complainant finally ends up in an inferior place and turns into the goal of systematic destructive social acts.

“Verbal bullying may include threats, shaming, hostile teasing, insults, constant negative judgment and criticism, or racist, sexist or LGBTQIA+ phobic language,” mentioned Dube.

Bullying is a type of harassment

In South Africa, all types of harassment associated to a number of of the listed grounds set out in part 6(1) of the Employment Fairness Act, 1998 (EEA) or every other ‘arbitrary ground’, are thought to be unfair discrimination. Harassment constitutes a barrier to fairness and equality in the workplace.

As such, harassment, together with bullying, have to be eradicated from the workplace and in any exercise linked to, or arising out of labor, the authorized professional mentioned.

“The code describes harassment, amongst others, as undesirable conduct which impairs dignity and which creates a hostile or intimidating work surroundings for a number of staff. A hostile work surroundings can be current the place conduct has a destructive influence on the worker’s potential to work and/or on their private well-being.

“Whether an employee has been a victim of bullying will depend on the impact of the alleged bullying on the employee. The test is subjective, however, there may be circumstances where employees believe they are being bullied and this perception is not consistent with the views of a ‘reasonable person’ in the situation of the complainant.”

Employer obligations

The code highlights that employers are beneath an obligation in phrases of part 60 of the EEA to take proactive and remedial steps to stop all types of harassment in the workplace, Dube mentioned.

“This contains conducting an evaluation of the threat of harassment to staff; creating and sustaining a working surroundings in which the dignity of staff is revered; adopting and implementing an applicable coverage addressing harassment in the workplace; conducting coaching to coach staff about the numerous types of harassment; implementing ongoing consciousness initiatives and programmes; and investigating allegations of harassment.

“Employers who fail to take adequate steps to eliminate bullying within a reasonable time of being notified about alleged acts of bullying by an employee may be found liable in terms of section 60 of the EEA. Employees who are found guilty of harassment including bullying, may, in certain circumstances, and depending on the severity of the conduct that is complained of, be summarily dismissed.”

In the Labour Court docket case between Centre for Autism Analysis and Training CC v CCMA and others, two staff had referred a constructive dismissal to the CCMA arising from, amongst others, bullying that they allegedly suffered from their supervisor. The CCMA discovered that that they had been unfairly dismissed, famous Bowmans.

On assessment, the courtroom held, amongst others, that what the proof discloses is a workplace operated by a narcissistic character whose offensive and unwelcome conduct had the impact of making a poisonous working surroundings in which discrimination, degradation and demeaning behaviour turned the norm.

The choose had no hesitation in discovering that the nature and extent of the workplace bullying suffered by the staff was such that for the functions of part 186(1)(e) of the LRA, their continued employment was rendered insupportable and the assessment software was dismissed with prices, mentioned Dube.

“Employers can help staff who’re being bullied at work to report such conduct by implementing the proactive steps outlined in the Code; making certain that staff are conscious that there’s a zero tolerance in the direction of bullying and every other type of harassment in that workplace; and assuring that staff who report allegations of any type of harassment won’t be victimized or subjected to any reprisals.

“It should also be stressed that those employees who make false allegations in bad faith may also be subjected to disciplinary action.”

Employers are inspired to hunt recommendation on how you can implement the obligatory steps set out in the code to keep away from falling foul of the EEA, Bowmans mentioned.

  • Commentary by Sibusiso Dube, companion at Bowmans South Africa

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