With the recent headlines at the University of the Witwatersrand, workplace harassment has once again come under the spotlight in South Africa. Although not a new phenomenon, workplace harassment, including acts of bullying, discrimination and sexual harassment, has been identified as one of the most rapidly increasing workplace problems throughout the world. Recent statistics report that in the United States, up to 4 million employees are likely to experience some form of workplace harassment per year, while the United Kingdom has recently passed anti-bullying legislation. Yet, despite its prevalence, workplace harassment, and bullying specifically, continues to be misunderstood, and receives limited attention from employers. As a result, incidences remain underreported.
Workplace bullying occurs without apparent provocation, when individuals are regularly abused or intimidated by another coworker/ s over a period of time, hampering performance and making work life difficult. Destructive communication is used to demean and humiliate, and may include:
- Yelling, cursing or swearing;
- Blaming an individual for the mistakes of others;
- Taking credit for the victim's work;
- Ridiculing through unsubstantiated criticism;
- Attacks on the victim's selfesteem;
- Refusal to delegate work or removal of responsibilities; and
- Unrealistic work demands.
Bullying has been defined as repeated attempts to torment or wear down a person, provoking, intimidating and intentionally harming the victim. The staff appraisal system may also be abused to deny promotion or performance- related salary increments.
Many causes exist for workplace harassment, but organisational factors may increase the risk of bullying. Strategies defined by "win-win" and "lose-lose" are regarded as a contributing factor that may create chaotic environments where consistency and reasoning are absent, and characterised by patrimonial and totalitarian management styles rather than teamwork.
In a number of assignments and reviews of allegations by employees relating to workplace harassment, it was found that departments with increased incidences of bullying had poor psychosocial work environments with significant work pressure and a poor social climate. These toxic work environments affected the wellbeing of victims and the functioning of work teams.
Poor or limited human resource management had also allowed workplace bullying to go unchallenged, and discouraged employees from challenging managers believed to have bullied subordinates.
In all of the assignments reviewed to date, the individuals identified as the perpetrators of workplace harassment were supervisors. Research suggests that some individuals are prone to bullying or discrimination, and explanations of the contributory factors for workplace bullying have examined the personality characteristics of individuals who bully their victims. These studies identified that those who engage in workplace harassment and bullying can be impulsive, emotionally reactive and have a low tolerance for ambiguity. These individuals were also seen to have little personal self-esteem, resulting in the constant need to inflate their selfesteem at the expense of others.
Workplace harassment and bullying behaviours may have serious consequences for the victims, affecting their psychological or physical health, or both. Some victims have experienced various types of abusive and harming behaviours simultaneously. Some victims reported that they continue to regularly think about their experience years after leaving the organisation, and appeared to remain traumatised.
Victims have reported varying degrees of anxiety, depression, despair, aggressive feelings, sleeplessness, inability to focus, dejection and a fear of social situations. Many had experienced physically manifested symptoms of stress, such as insomnia, headaches, stomach aches, constant crying and the inability to relax.
When considering their options, many victims decide to leave their current position, while others experience burnout because of the harassment. Importantly, this behaviour not only affects the mental health of the victim, but in many cases has also affected their team members, co-workers and the organisation professionally.
Ultimately, workplace harassment is a violation of fundamental human rights that often leaves victims physically, psychologically and professionally scarred. A lack of knowledge about this issue is therefore likely to deprive victims of appropriate diagnosis and treatment.
Section 6(3) of the Employment Equity Act 55 of 1998 (EEA) recognises "harassment" as a form of unfair discrimination, and prohibits this behaviour on the grounds of race, colour, sexual orientation, etc. Once an employer is notified of such an act, the employer is required to consult with all relevant parties and to take the necessary steps to eliminate the alleged conduct. Where an employer fails to take the necessary steps to (1) eliminate the alleged conduct and (2) comply with the provisions of the EEA, the employer will be deemed also to have contravened the provisions of the EEA. Where the provisions of section 60 are contravened, an employee may be entitled to compensation and/or damages.
In light of an employer's duty of fair dealing towards its employees, which the Supreme Court of Appeal (SCA) recognised in Murray v Minister of Defence, p r eventive or reactive measures implemented by employers should not be confined to instances of sexual harassment, but should include instances of victimisation, bullying, abuse and other forms of intolerable employee behaviour.
Employers remain exposed to claims of a delictual nature where incidents of bullying or harassment have not been reasonably addressed. One such example is in Media 24 Ltd & another v Grobler, where the SCA held that an employer owed a legal duty to its employees to create and maintain a safe working environment, and to take reasonable care for its e mp l oye e s ' s a f e ty .
This duty of care is not limited to protection from physical harm, but includes a duty to protect employees from psychological harm. In this instance, the SCA upheld a High Court order holding the employer vicariously liable for the unlawful acts perpetrated by its employee, which resulted in an award for damages in excess of R700 000 in favour of an employee who had been sexually harassed by a manager over a period of five months.
Employers may therefore be held liable for their managerial st a f f 's failure to address a complaint raised by an employee regarding alleged harassment, even where an employee declines to file a formal grievance against a colleague, but where the employer ought to have known that the complaint was justified.
Where no adequate statutory or common-law remedy is present, our Labour Court has recognised an employee's recourse against the employer by way of a claim for "constitutional damages". In P i liso v Old Mutual Life Assurance Co (SA) Ltd & others, an employee's alternative claim for constitutional damages was upheld with an order of R45 000, where it was alleged the employer failed or neglected to ensure a safe and secure work environment, to investigate all the issues surrounding the claim of harassment properly, and to provide assistance in the form of counselling.
Where an employee is able to prove that the work situation had become so intolerable that there was no alternative other than to resign, and the employer failed to address the complaint regarding harassment or bullying, the employee may allege constructive dismissal, which could expose an employer to an award of compensation of up to 12 months' r emuneration if the claim succeeds.
Where the employee is able to show that discrimination in the form of harassment was the catalyst for resignation, the dismissal could be deemed an automatically unfair dismissal, potentially exposing the employer to liability in the form of compensation of up to 24 months' r e m u n e r at i o n .
Addressing the risks
Pursuant to the provisions of the EEA, the Code of Good Practice on the Handling of Sexual Harassment Cases contains a recommendation on the procedure to be followed by an employer to address complaints of sexual harassment in the workplace. While employers cannot be penalised for failing to implement its recommendations (the code is not binding in law and is merely instructive), employers would be well advised to consider adopting the recommendations or establishing a workplace-specific harassment grievance procedure, given the liability which may be inferred on them by virtue of section 60 of the EEA.
To reduce the incidence of bullying, researchers have suggested implementing programmes that promote an emotional intelligence leadership capability. These aim to develop leaders who are empathetic and supportive of the needs of their teams, while also effectively managing their own emotions, and are therefore able to develop effective relationships with others.
Due to the severe personal and organisational effects that workplace harassment and bullying may have, organisations need to recognise these symptoms, and need to be prepared to take appropriate action to prevent or mitigate the devastating impact which may, in all likelihood, detract from the development and maintenance of a productive workp lace.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.