Employers must investigate harassment/bullying claims and act decisively if they are serious, striving to maintain a psychologically safe workplace.
Inadequate action could result in liability under section 60 of the Employment Equity Act (EEA).
This highlighted by the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace which has been effective for more than two years.
“The Code highlights various forms of harassment in the workplace and places a duty on employers to prevent and eliminate it if it is based on one or more of the listed grounds of unfair discrimination in… the EEA,”.
In terms of the Code, bullying is a form of harassment.
Although the definition is broad, bullying encompasses a range of behaviours where individuals or groups misuse their power in a workplace, leading to repeated aggression towards others.
This behaviour not only generates a hostile or intimidating environment but also undermines dignity, often being demeaning or insulting.
Since the Code has come into effect, employers have experienced an increase in reported allegations of bullying in the workplace arising from harassment policies that have been adopted and implemented as required.
However. “unlike the strict requirements of the Code, employer harassment policies often do not limit harassment to conduct based on one or more of the listed grounds of unfair discrimination as set out in the EEA,”.
Despite a rise in reported workplace bullying, the legal expert highlights that jurisprudence remains sparse, with only one recent Labour Appeal Court case, possibly due to the relative difficulty of proving bullying.
There are several contributing factors that contribute to the challenge of dealing with allegations of bullying in the workplace, including:
- Bullying often occurs privately between the perpetrator and complainant, with no witnesses;
- Bullying rarely involves email or text, leading to a lack of evidence;
- Proving emotional impact and intent is challenging;
- Bullying can be conveyed through body language, which is hard to prove;
- Reactions to conduct vary due to personal experiences, making it difficult to apply a universal standard;
- Distinguishing between managerial prerogative and bullying can be unclear.
It is not impossible to prove bullying in the workplace,”.
Employees are generally encouraged to report any conduct that impairs their dignity or causes a hostile work environment as early as possible and seek assistance.
“In doing so, they should assess whether there are objective factors that speak to their subjective feelings, and should consider whether a reasonable person in their position would view the conduct as bullying.”
Additionally, “employers should investigate all allegations of harassment/ bullying and ensure that the conduct complained of crosses the line before taking disciplinary action.”
However, not all forms of harassment/ bullying justify a dismissal.
“Employers should do everything in their power to create a working environment where employees feel psychologically safe.”
“At times, this may require making unpopular decisions at the highest levels [and a] failure to deal with such allegations adequately may result in employers being found liable in terms of section 60 of the EEA,”
Sibusiso Dube
