A letter to the Sunday Times yesterday (5th January 2012) dealt with an employee who believed her boss “to be from hell”. She (or, perhaps, he) expanded with comments such as “intent on sabotaging me at every turn; making my working life impossible; tells me of meetings five minutes beforehand; then requires a presentation [clearly not prepared]; very embarrassing; not sure how much longer I can take the stress”.
The response from the paper’s correspondent contained one or two useful comments about relationships but totally failed to comment on the legal options available to the employee.
Workplace bullying is a worldwide phenomenon. Nearly half of all American workers (49%) report that they have been affected by workplace bullying, either being a target themselves or having witnessed abusive behaviour against a co-worker. [1] Sadly, South Africa shares an equal part of the unhappy state of affairs.
What is workplace bullying? One definition states “systematic aggressive communication, manipulation of work, and acts aimed at humiliating or degrading one or more individual that create an unhealthy and unprofessional power imbalance between bully and target(s), result in psychological consequences for targets and co-workers, and cost enormous monetary damage to an organisation’s bottom line“.[2]
Aggressive and harassing behaviour is often resorted to in the hopes that an employee will resign; rudeness, swearing, reprimanding them in an abusive manner in the presence of other employees may all be considered bullying and, thereby, abusive behaviour or harassment.
Most people think of harassment, as being sexual harassment but it is far more than that. The CCMA (South Africa) define harassment as “any incident that has happened to an individual at the workplace that is unwelcome, unwanted and has a destructive effect”. Examples of harassment are:
- Bullying;
- Spreading malicious rumours, or insulting someone, particularly on gender, race or disability grounds;
- Ridiculing or degrading someone – picking on them or setting them up to fail;
- Exclusion or victimisation;
- Unfair treatment, for example based on race, gender, sexual orientation, pregnancy, age, disability, religion, HIV status, etc;
- Overbearing supervision or other misuses of power or position;
- Unwelcome sexual advances – touching, standing too close and displaying of offensive material;
- Making threats/comments about job security without foundation;
- Deliberately undermining a competent worker by overloading and constant criticism;
- Preventing individuals progressing by intentionally blocking promotion or training opportunities.
South African legislation demands each individual should be treated with dignity and respect at work. Employers have a duty to protect their workers from harassment and to inform and educate them about this issue. Employers are also encouraged to develop a code of conduct on harassment [beyond just sexual harassment].
Because the law protects one against harassment, it is recognised as unfair discrimination and the CCMA[3] recommends an employee:
- Keeps a record of all incidents, taking notes on date and time, potential witness and what was done.
- Confront the harasser. Firstly you can act informally and speak to the harasser directly, taking a witness with you. You could also make a formal complaint following the normal complaint procedure.
- Use a grievance or disciplinary procedure as a formal way of dealing with harassment cases. Report the matter to the appropriate person at work:
- If you are a member of a union or employees’ association, contact your shop steward or representative.
- If you are not a union member, contact the company’s Human Resources Manager or someone else in a position of authority, like your Supervisor or Senior Manager.
- If you work in a very small business and the above options are not open to you, contact the CCMA for assistance regarding your rights in terms of the labour laws.
- Once the case has been reported, the company management (or union) must investigate the case.
- Usually, there will be a disciplinary inquiry to establish the facts, hear both sides of the story and decide on the appropriate disciplinary measures for the harasser. The matter can be referred to the CCMA for conciliation and, if unresolved, the matter is referred to the Labour Court in terms of the Employment Equity Act.
A further option might be resignation on the grounds of constructive dismissal, however, constructive dismissal is not the easiest matter to prove at the CCMA and it would be essential that the CCMA steps (as above) be followed before contemplating such a potentially drastic action. At the very least seek outside assistance before resigning.
Management should not, however, throw their collective hands in the air and feel they cannot discipline staff where necessary. Simply ensure any disciplinary enquiry or incapacity enquiry is be dealt with in a professional manner affording the individual respect and dignity. As Dwight Eisenhower once said, “You don’t lead by hitting people over the head – that’s assault, not leadership.”
Graham Nicholls – Focussed-Outcomes
graham@focussed-outcomes.co.za
You may also want to read:
The Protection From Harassment Act - How does it Affect the Workplace
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