Workplace bullying has come under the spotlight in recent times, most especially in relation to sexual harassment. However, workplace bullying can also include discrimination and workplace harassment, and although workplace bullying has most likely existed for years, it has only recently received increased attention as a result of a renewed focus on human rights and employees’ rights to be treated fairly and with dignity in the workplace, competitive conduct of companies to become employers of choice, as well as adverse reputational effects of workplace bullying for global or multinational companies thanks to the reach of globalisation and social media. However, employers often don’t know how to address it, or staff may remain anxious that reporting the incident may result in the termination of their employment or further victimisation, many workplace bullying incidents remain unreported as a result.

Workplace bullying can take many forms, such as overloading employees with work, constant unwarranted criticism, micromanaging employees, exclusion of targeted employees from meetings and work-related matters, silent treatment and even screaming and shouting at an employee in an open setting at work.

Bullying may be instigated by managers as well as colleagues and where the bullying is instigated by colleagues it usually takes the form of gossip, isolating, sabotage and intimidation.

Where a manager of a company is the instigator of the bullying, this may take the form of targeting a specific employee, or as part of a toxic work environment impacting all the staff in the division. This has a negative impact on business, productivity and corporate governance and often also amounts to a breach of various provisions of employment related legislation. A high staff turnover rate and grievances being lodged against managers may be an indication that the employer is exposed to external and internal pressures and that bullying is part of workplace interactions.

Certain bullies may operate in a more insidious manner with a calculated aim of negatively impacting their subordinate or colleague’s career, or covering up irregularities in their departments. Employees may be threatened and therefore remain silent due to the fear of being victimised.

Workplace bullying is a serious issue for any organisation, and it is not without legal ramifications.

What does the law say about workplace bullying?

Depending on the context of the workplace bullying, a number of legal factors may come into play.

• If the person is being bullied after making a “protected disclosure” as defined in the Protected Disclosures Act (“PDA”), this amounts to an unfair labour practice as defined in the Labour Relations Act (“LRA”). This generally involves reporting unlawful conduct of the employer or another employee of an employer as defined in the PDA.
• Bullying may also qualify as an unfair labour practice in the form of demotion if the bullying progresses to the person’s roles and functions being removed or having only menial tasks assigned to them instead of their appointed functions.
• If the bullying results in continued employment becoming intolerable and the person resigns (usually after exhausting all internal remedies) this could be cause for a “constructive dismissal” which could lead the employer to being held liable for unfair dismissal.
• Bullying may also amount to a form of unfair discrimination in the form of harassment, which is prohibited by the Employment Equity Act (“EEA”). Section 6(3) of the EEA sets out that: “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).”
  • The grounds listed in section 6(1) include “any arbitrary ground”, along with the typical grounds of race, gender, pregnancy etc.
  • If an employee can prove that they have been harassed on any listed or arbitrary ground, they may be able to approach the Labour Court for relief (after a referral to the Commission for Conciliation, Mediation and Arbitration for the matter to be conciliated). An important proviso is that section 10 provides that the person referring the matter must have made a reasonable attempt to resolve the dispute. In our view, this means that the person who is bullied must have addressed the matter internally, brought it to the attention of the employer, by making use of the internal grievance processes.
  • The victim may be able to claim both compensation and damages from the employer. The court may also order the employer to take steps to prevent the same unfair discrimination from or similar practice occurring in future in respect of other employees. It may also order that its order is published – which could have adverse reputational consequences for the offending employer.

As such, as soon as an employer has knowledge of bullying occurring in the workplace and takes no action to remedy same, the employer may be held liable for contravention of the applicable laws.

What should employers do to address bullying in the workplace?

• Employers should ensure that their internal policies make provision for anonymous reporting of bullying where necessary. Bullies often threaten the victims, and this may cause the victims not to report out of fear.
• A proper grievance procedure should be put in place and employees must be made aware of the steps they can take if they experience any kind of bullying by a manager or a colleague.
• Where there is suspicion that a department or division is being run by a “toxic boss”, an external consultant may be called in to interview employees. The staff may feel more confident discussing the issues with an external party, rather than with another senior manager in the organisation. The damage done in some of these cases can be immense and should be addressed sooner rather than later.
• Encourage a workplace which is free of sexual harassment and other forms of bullying. This must be woven into the business’s organisational culture and managers should lead by example.
• Where bullying has been reported, the employer should promptly investigate or appoint an external investigator to conduct interviews and gain clarity on the situation, and proceed to address the issue through the grievance channels. The employee should be protected as far as possible, especially were the allegations are of a sensitive nature (e.g sexual harassment) or where there are legitimate fears for safety.
• Where sufficient evidence has been gathered regarding the presence of a bully in the organisation, the offender should be dealt with through the disciplinary procedures and a suitable sanction imposed, should the person be found guilty. The difficulty with such hearings is that often, the oral evidence of the victim(s) is required due to no other evidence being available. Consideration will have to be given as to how evidence will be presented against an accused staff member, where the victim may be unable to testify.
• Often, merely removing the bully from the affected team is not enough. Efforts must be made to address the culture that may have created the environment which enabled the bullying, including the manner in which teams are structured, performance management measures in place (or lack thereof) and other unhealthy team dynamics which may have crystallised in the team. 

Conclusion If you require any advice in respect of workplace bullying, whether you are an employer or a employee, and whether there an incident has occurred and requires to be investigated or addressed or if preventative measures and policies are required, we can assist and advise on the matter.

Author
Tarynne Willis