Legal implications of “bullying” in the workplace

Bullying is a term usually associated with schoolchildren i.e. taunting, pushing, shoving, and picking on the new or different kid in the class. However, bullying is also a reality amongst adults in the workplace. These actions are more commonly referred to as harassment and victimisation.

Under current labour laws, including the Labour Relations Act (LRA), the Basic Conditions of Employment Act (BCEA), or the Employment Equity Act, bullying is not explicitly defined. However, section 6(1) of the Employment Equity Act does contain a prohibition against unfair discrimination:

“No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground.” Section 6(2) adds: “Harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination listed in subsection (1).”

Ordinarily, bullying will be deemed harassment, and therefore will fall under the ambit of unfair discrimination, even if the reason for the bullying is not one of the grounds listed under section 6(1) of the Employment Equity Act. If the reason for the harassment can be demonstrated, a case for harassment/bullying can be made.

Bullying often rears up when an employer wishes to force an employee to resign without reason or provocation, thus not having a justifiable reason or sufficient evidence of misconduct to follow the correct disciplinary procedure to remove the employee from the workplace. The Employer then resort to aggressive and harassing behaviour to make continued employment for the victim unbearable.

Therein lays the real risk to Employers. According to the CCMA, employers have a duty of care to protect their employees from bullying, harassment, and victimisation. Under the umbrella term “harassment” this is classed as unfair discrimination due to a violation of human rights.

When employees are unfairly discriminated against in this way, they should have the normal company grievance procedure available to them to resolve the matter. Employers are obligated to investigate the case and where necessary, take disciplinary action against the harasser. If the matter cannot be resolved within the company’s internal structures, the complaint can be referred to the CCMA for conciliation. If a resolution is still not reached, the matter will then be referred to the Labour Court for arbitration. In the case where harassment led to, or influenced, a dismissal the matter may be an automatically unfair dismissal which falls under the exclusive jurisdiction of the Labour Court.

Employers should also take note of the Protection from Harassment Act (Act no. 17 of 2011) which could have even further detrimental implications to a business should they fail to take adequate action on a complaint of harassment (victimisation or bullying). The provisions of this act make it possible for an employee to obtain a protection order against an abusive supervisor or colleague. Such an order, and some of the protective measures deemed necessary by the court, may cause the day to day running of the business to become impractical.

Employers are advised to draft and implement harassment policies as well as training and awareness campaigns in the workplace and to deal with complaints as quickly as possible.

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