Bullying is a word synonymous with the type of conduct expected in school playgrounds. It is not a word that is usually associated with the workplace.
However, bullying in the workplace is prevalent such that the new Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (Code), which took effect on 18 March 2022, has placed a positive duty on employers to play their part in preventing bullying in the workplace.
In terms of the Code, bullying involves the abuse of coercive power by an individual or group of individuals in the workplace and may involve aggressive behaviour in which someone repeatedly causes another person injury or discomfort.
Bullying includes a wide range of insulting, demeaning or intimidating behaviour that lowers the self-esteem or self-confidence of an employee and may be an escalating process in the course of employment in which the complainant ends up in an inferior position and becomes the target of systematic negative social acts. Verbal bullying may include threats, shaming, hostile teasing, insults, constant negative judgment and criticism, or racist, sexist or LGBTQIA+ phobic language.
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 in any activity linked to, or arising out of work.
The Code describes harassment, among others, as unwanted conduct which impairs dignity and which creates a hostile or intimidating work environment for one or more employees. A hostile work environment will be present where conduct has a negative impact on the employee’s ability to work and/or on their personal 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.
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. 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 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 case between Centre for Autism Research and Education CC v CCMA and others, two employees had referred a constructive dismissal to the CCMA arising from, among others, bullying that they allegedly suffered from their manager. The CCMA found that they had been unfairly dismissed. On review, the Court held, among others, that what the evidence discloses is a workplace operated by a narcissistic personality whose offensive and unwelcome conduct had the effect of creating a toxic working environment in which discrimination, degradation and demeaning behaviour became the 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.
Employers can assist employees who are being bullied at work to report such conduct by implementing the proactive steps outlined in the Code; ensuring that employees are aware that there is a zero tolerance towards bullying and any other form of harassment in that workplace; and assuring that employees who report allegations of any form of harassment will not 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 encouraged to seek advice on how to implement the mandatory steps set out in the Code to avoid falling foul of the EEA.
Written by Sibusiso Dube, Partner, at Bowmans South Africa