Workplace Harassment and Bullying
Understanding Workplace Harassment and Bullying
Workplace harassment and bullying are pervasive issues that affect employees across various sectors in South Africa. These behaviors not only undermine the dignity and well-being of individuals but also have significant legal implications for employers and employees alike. In the context of South African law, workplace harassment and bullying refer to unwelcome conduct in the workplace that demeans, humiliates, or intimidates an employee, and can include actions, words, or physical gestures.
Legal Framework
South African legislation provides robust mechanisms to address workplace harassment and bullying. The primary legal instruments include the Labour Relations Act 66 of 1995, the Employment Equity Act 55 of 1998, and the Occupational Health and Safety Act 85 of 1993.
The Employment Equity Act (EEA) prohibits unfair discrimination and harassment in the workplace, defining harassment as a form of unfair discrimination [Employment Equity Act 55 of 1998, Section 6(3)]. The Act obliges employers to promote equal opportunity and eliminate unfair discrimination in any employment policy or practice.
Under the Labour Relations Act (LRA), employees who experience workplace harassment and bullying may have grounds to claim constructive dismissal if they resign due to intolerable work conditions [Labour Relations Act 66 of 1995, Section 186(1)(e)].
Forms of Workplace Harassment and Bullying
Workplace harassment and bullying can manifest in various forms, including but not limited to:
Verbal Abuse: Insults, derogatory remarks, or spreading malicious rumors.
Physical Abuse: Any form of physical violence or threatening behavior.
Psychological Harassment: Intimidation, humiliation, or undermining a person’s work performance.
Sexual Harassment: Unwanted sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature [Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace, GN 1367 of 1998].
The Impact of Workplace Harassment and Bullying on Employees and Employers
Workplace harassment and bullying have detrimental effects on both employees and employers. For employees, these behaviors can lead to stress, anxiety, decreased job satisfaction, and even mental health issues. For employers, the consequences include reduced productivity, increased absenteeism, and potential legal liability.
In Media 24 Ltd & Another v Grobler [2005] 7 BLLR 649 (SCA), the Supreme Court of Appeal held an employer liable for damages suffered by an employee due to sexual harassment by a manager, highlighting the employer’s responsibility to maintain a safe working environment.
Legal Remedies and ProtectionsÂ
Employees subjected to workplace harassment and bullying have several legal remedies:
Lodging a Grievance: Employees can report incidents internally through the company’s grievance procedures.
Approaching the CCMA: The Commission for Conciliation, Mediation and Arbitration (CCMA) assists in resolving disputes related to unfair labor practices.
Labour Court: In severe cases, employees can take their case to the Labour Court for adjudication.
The Protection from Harassment Act 17 of 2011 also provides a legal avenue for victims to obtain protection orders against harassers, offering a civil remedy outside of the employment context.
Employer’s Duty to Prevent Workplace Harassment and Bullying
Employers have a legal obligation to create and maintain a work environment free from workplace harassment and bullying. This duty includes implementing policies, providing training, and taking prompt action when incidents are reported.
In Biggar v City of Johannesburg (Emergency Management Services) [2011] 32 ILJ 1283 (LC), the Labour Court emphasized the employer’s responsibility to prevent harassment and took into account the employer’s failure to address the employee’s complaints adequately.
How to Address Workplace Harassment and Bullying: Steps for Employees
Employees who experience workplace harassment and bullying should:
Document Incidents: Keep a detailed record of all incidents, including dates, times, witnesses, and the nature of the harassment.
Report the Behavior: Notify a supervisor, HR department, or use established internal procedures.
Seek Legal Advice: Consult with a legal professional to understand their rights and options.
Consider Mediation: Explore mediation through the CCMA to resolve the issue amicably.
Frequently Asked Questions
What constitutes workplace harassment and bullying under South African law?
Workplace harassment and bullying encompass any unwelcome conduct that demeans, humiliates, or intimidates an employee. This includes verbal, physical, psychological, and sexual harassment as defined under various South African statutes like the Employment Equity Act and the Labour Relations Act.
Can I claim constructive dismissal if I resign due to workplace harassment and bullying?
Yes, if an employee resigns because the employer made continued employment intolerable through harassment or bullying, they may claim constructive dismissal under Section 186(1)(e) of the Labour Relations Act.
What is the employer’s responsibility in preventing workplace harassment and bullying?
Employers are legally required to provide a safe working environment, which includes implementing policies against harassment and bullying, providing training, and taking immediate action when incidents are reported.
How can I prove workplace harassment and bullying?
Documentation is crucial. Keep records of all incidents, communications, and any witnesses who can corroborate your claims. This evidence is essential in legal proceedings or internal investigations.
Is there a time limit to report workplace harassment and bullying?
While internal policies may specify time frames, legally, it’s advisable to report incidents as soon as possible. For legal claims like unfair dismissal, the Labour Relations Act stipulates specific time limits for filing complaints with the CCMA.
Can I be victimized for reporting workplace harassment and bullying?
Victimization for reporting harassment is itself a form of unfair discrimination and is prohibited under the Employment Equity Act. Employers must protect employees from retaliation.
What role does the CCMA play in cases of workplace harassment and bullying?
The CCMA assists in mediating and arbitrating disputes related to unfair labor practices, including cases involving harassment and bullying. They provide a platform for resolving issues without resorting to court proceedings.
Are there any defenses available to employers against claims of workplace harassment and bullying?
Employers may defend themselves by demonstrating that they took all reasonable steps to prevent harassment and bullying, such as having robust policies, providing training, and promptly addressing complaints.
Can workplace harassment and bullying lead to criminal charges?
In severe cases, actions constituting assault or other criminal offenses can lead to criminal charges under the Criminal Procedure Act 51 of 1977.
What compensation can I receive if I prove workplace harassment and bullying?
Compensation may include damages for emotional distress, loss of income, and in some cases, punitive damages. The amount depends on the severity of the case and is determined by the court or through settlement negotiations.
References
| Legal Authority | Substance and Importance |
|---|---|
| Employment Equity Act 55 of 1998 | Prohibits unfair discrimination and harassment in the workplace; establishes the legal framework for addressing harassment as a form of unfair discrimination. |
| Labour Relations Act 66 of 1995 | Provides mechanisms for addressing unfair labor practices, including constructive dismissal claims resulting from workplace harassment and bullying. |
| Occupational Health and Safety Act 85 of 1993 | Obligates employers to ensure a safe working environment, indirectly addressing workplace harassment and bullying by emphasizing employee well-being. |
| Protection from Harassment Act 17 of 2011 | Offers legal remedies for victims of harassment, including protection orders, expanding protections beyond the employment context. |
| Media 24 Ltd & Another v Grobler [2005] 7 BLLR 649 (SCA) | Landmark case holding employers liable for failing to prevent sexual harassment, emphasizing employer responsibility. |
| Biggar v City of Johannesburg (Emergency Management Services) [2011] 32 ILJ 1283 (LC) | Reinforced the duty of employers to address harassment complaints promptly and effectively. |
| Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace | Provides guidelines for employers on preventing and addressing sexual harassment, illustrating best practices. |
| Criminal Procedure Act 51 of 1977 | Relevant for cases where harassment and bullying involve criminal conduct, enabling criminal charges to be brought. |
Useful Links
Commission for Conciliation, Mediation and Arbitration (CCMA): www.ccma.org.za
The CCMA provides resources and assistance for resolving labor disputes, including cases of workplace harassment and bullying. Their website offers valuable information on dispute resolution processes.
South African Labour Guide: www.labourguide.co.za
This site offers comprehensive information on labor laws in South Africa, including articles and guides on workplace harassment and bullying, helping both employers and employees understand their rights and obligations.
Department of Employment and Labour: www.labour.gov.za
The official government website provides access to legislation, codes of good practice, and resources related to employment laws, including measures to combat workplace harassment and bullying.
If you would like to know more about employment contracts click here.
If you would like to know more about employment rights in the entertainment industry click here.
If you would like to know more about employment rights in general click here.
If you would like to know more about your rights during a retrenchment click here.
If you would like to know more about what to do to enforce a ccma award click here.
If you would like to know more about dismissal in absence of the employee click here.
If you would like to know more about the difference between misconduct and incapacity click here.
If you would like to know more about unfair labour practices in general click here.
If you would like to know more about gender re-assignment and the law click here.
If you would like to know more about online defamation click here.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for errors, omissions, loss, or damage arising from reliance upon any information herein. Don’t hesitate to contact Meyer and Partners Attorneys Incorporated if you require further information or specific and detailed advice. Errors and omissions excepted (E&OE).