New case deals with bullying in the workplace in South Africa

Bullying is a synonym for the kind of conduct expected in school playgrounds. It is not a word that is commonly associated with the workplace, notes Sibusiso Dube, partner at Bowmans South Africa.

However, bullying in the workplace is so prevalent that the new Code of Good Practice on Prevention and Elimination of Harassment in the Workplace (Code), which took effect on March 18, 2022, has placed a positive duty on employers to prevent bullying in their workplace in the workplace, Dube said.

In these terms of the Code, Bowmans asserted that bullying involves the coercive power of abuse by an individual or group of individuals in the workplace and may include aggressive behavior that repeatedly causes the injury or discomfort of another person.

“Bullying involves a wide range of insulting, demeaning or intimidating behavior that lowers the self-esteem or self-confidence of an employee and may result in the employment of a course in an escalating process that results in an inferior position and becomes an inferior position. The target of systematic negative social actions.

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

Bullying is a form of harassment

In South Africa, all forms of harassment related to one or more of the listed grounds set out in section 6 (1) of the Employment Equity Act, 1998 (EEA) or any other ‘arbitrary ground’, are regarded as unfair discrimination. Harassment constitutes a barrier to equity and equality in the workplace.

As such, harassment, including bullying, must be eliminated from the workplace and any activity linked to, or arising out of, the legal expert said.

“The code governs harassment, among others, as an unwanted conduct that impairs dignity and creates a hostile or intimidating work environment for one or more employees. A hostile work environment will present where conduct has a negative impact on an employee’s ability to work and / or their personal well-being.

“Whether an employee has been bullying a victim 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 bullied and this perception is not consistent with the views of a ‘reasonable person’ in the situation. “

Employer obligations

The code highlights that employers are under an obligation in terms of section 60 of the EEA to take proactive and remedial steps to prevent all forms of harassment in the workplace, Dube said.

“This includes conducting an assessment of the risk of harassment to employees; creating and maintaining a working environment in which the dignity of employees is respected; adopting and implementing an appropriate policy addressing harassment in the workplace; conducting training to educate employees about the various forms of harassment; implementing ongoing awareness initiatives and programs; and investigating allegations of harassment.

“Employers who fail to take reasonable steps to eliminate bullying within a reasonable period of time notify 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, under certain circumstances, and depending on the conduct of the severity that is complained of, will be summarily dismissed. “

In the Labor Court case between Center for Autism Research and Education CC v CCMA and others, Two employees were referred to a constructive dismissal from the CCMA arising from, among others, bullying that they allegedly suffered from their manager. The CCMA found that they had been unfairly dismissed, noted Bowmans.

On review, the court held, among others, that the evidence disclosed is a workplace operated by a narcissistic personality whose aggressive and unwelcome conduct had the effect of creating a toxic working environment in which discrimination, degradation and demeaning behavior became norm.

The judge had no hesitation in finding that the nature and extent of the workplace bullying suffered by the employees was such that for the purposes of section 186 (1) (e) of the LRA, their continued employment was rendered intolerable and the review application was. dismissed with costs, said Dube.

“Employers can assist employees who are being bullied at work to report such actions by outlining the proactive steps in the Code; that employees are aware that there is a zero tolerance toward bullying and any other form of harassment in that workplace; and assuming that employees who report harassment of any form of allegations will not be victimized or subjected to any reprisals.

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

Employers are encouraged to seek advice on how to implement the mandatory steps set out in the code to avoid falling foul of the EEA, Bowmans said.

  • Commentary by Sibusiso Dube, Partner at Bowmans South Africa

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