forensics ENSight | 11 June 2013

Do you have a bully in the workplace?

by Deirdre Viljoen

With the recent headlines regarding the University of Witwatersrand appointing a legal firm to probe claims of sexual harassment at the University and the firing of a lecturer for failing to disclose past misconduct of a similar nature, 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 and subsequently, incidences remain underreported.

Workplace bullying has been identified as a significant workplace problem which is not isolated to a specific occupation or profession. Given the considerable role the workplace plays in a person’s life, it is essential for employers and organisations to be aware of this growing problem and to understand its impact not only on the wellbeing of individual employees, but also on the reputation and productivity of the organisation as a whole. Opportunities for conflict and aggressive behaviour are reportedly greater in organisations exposed to external and internal pressures where bullying has become a normal part of workplace interactions and raising a grievance may actually result in further victimization.

SYMPTOMS

Workplace bullying occurs without apparent provocation, when individuals are regularly abused or intimidated by another co-worker/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 self-esteem;
  • 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 organizational 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 characterized by patrimonial and totalitarian management styles rather than teamwork.

Organizational factors of workplace harassment include:

  • work changes, introduction of information technology or mergers;
  • organizational conditions, work pressures and high performance demands;
  • role uncertainty or conflicts;
  • cultures where bullying is regarded as normal; and
  • autocratic management styles.

Departments with increased incidences of bullying had poor psychosocial work environments with significant work pressure and a poor social climate. These toxic work environments are conducive to bullying, affecting the well-being of victims and functioning of work teams. Poor or limited human resource management has also allowed workplace bullying to go unchallenged and discouraged employees from challenging managers believed to have bullied subordinates. Problems were blamed on the individuals rather than organisational practices. Victims were left to find individual solutions like approaching the media or changing jobs.

PERPETRATORS

In all 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 self-esteem at the expense of others.

NEGATIVE IMPACTS

Workplace harassment and bullying behaviours may have serious consequences for the victims, affecting their psychological and physical health, or both. Some victims have experienced various types of abusive and harming behaviours simultaneously and constant harassment has resulted in severe psychological and emotional distress. 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 extreme anxiety, depression, despair, aggressive feelings, sleeplessness, inability to focus, dejection and a fear of social situations.  Some of the more common feelings identified by victims interviewed included:

  • extreme fear;
  • anger;
  • low self-confidence and humiliation;
  • restlessness; and
  • severe stress.

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, victims contemplate strategies to cope with harassment. Many 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.

LEGALLY SPEAKING

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 (the “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, it 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 to have also 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 (the “SCA”) recognised in Murray v Minister of Defence1  preventive or reactive measures implemented by employers should not be confined to instances of sexual harassment or 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 Grobler2 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 employees’ safety. This duty of care was not limited to the protection from physical harm, but includes a duty to protect employees from psychological harm. In this instance the SCA upheld the 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 its managerial staff’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 Piliso v Old Mutual Life Assurance Co (SA) Ltd & others3, 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. 

The court found that the employer was obliged to take all reasonable steps to eliminate or reduce the possibility of the incident re-occurring and that the legal convictions of the community reasonably require and expect the employer to investigate the identity of the alleged perpetrator, and to take immediate steps to provide the employee with support to minimise the possibility of psychological trauma.  Where an employer failed to meet these standards and where an employee could not obtain relief through statutory or common-law remedies, an employee could approach the Labour Court for relief in the form of constitutional damages where his or her constitutional right to fair labour practices is found to have been violated.

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 remuneration 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’ remuneration.

Due to the severe personal and organizational effects 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 workplace.

ADDRESSING THE RISKS

There is an urgent need for organisations to be aware of, understand and prevent this growing problem and its effects through comprehensive grievance and disciplinary procedures. These should be supported by effective and independent Human Resource and support structures coupled with clearly defined policies and procedures.

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 merely instructive)4  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 upon them by virtue of section 60 of the EEA. 

Helping victims deal with the consequences of workplace harassment is a challenging process and may include therapeutic intervention that can facilitate the healing process. Organisations have a responsibility not only to the victim but also to the individual portraying the disruptive and irregular behaviour.

Leadership can both mitigate and allow bullying to occur as a result of leadership styles with varying levels of reliance on the inter-personal capabilities of the leader. These capabilities have the potential to influence both the workplace culture and workplace bullying.

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.

CONCLUSION

Given the devastating impacts workplace harassment and bullying can have on an organisation and its employees, it is critical that the symptoms be addressed as and when they begin to manifest. Through its Employment and Forensic departments, Edward Nathan Sonnenbergs has successfully conducted a number of assignments and reviews of allegations by employees relating to workplace harassment and assisted numerous organisations to address, improve, restore and maintain a cordial working environment.

We understand that each situation presents a unique set of facts. Our legal and forensic experts are able to apply a thorough and comprehensive approach to an emotionally charged, challenging and increasingly significant problem faced by many organisations. Forensic Assessments of the situation are provided to objectively determine whether or not the allegations are true and can be substantiated by a poor working environment encouraging cases of harassment. An investigative and evidence-based approach is often applied to obtain additional information that may be indicative of a hostile or abusive working environment. We then present our findings and recommendations in a proven and factual account of events devoid of any emotional contradictions, denials and explanations.

We will eliminate those factors that contribute to and result in a chaotic working environment, identifying practices and opportunities that could potentially create or enhance the abuse of power and harassment of employees.

REFERENCES

  • Agervold, M. (2009). The significance of organizational factors for the incidence of bullying. Branch, S., Ramsay, S., and Barker, M. (2012).
  • Workplace Bullying, Mobbing and General Harassment: A Review. Hodson, R., Roscigno, V. J., and Lopez, S. H. (2006).
  • Chaos and the Abuse of Power: Workplace Bullying in Organizational and Interactional Context. Hoel, H., and Beale, D. (2006).
  • Workplace Bullying, Psychological Perspectives and Industrial Relations: Towards a Contextualized and Interdisciplinary Approach. Hutchinson, M., and Hurley, J. (2012).
  •  Exploring leadership capability and emotional intelligence as moderators of workplace bullying. Lewis, J., Coursol, D., and Wahl, K. H. (2002).
  • Addressing issues of workplace harassment: Counseling the targets. Parkins, I. S., Fishbein, H. D., and Rithcey, P.N. (2006). The Influence of Personality on Workplace Bullying and Discrimination.
  • Rycroft, A “Workplace bullying: unfair discrimination, dignity violation or unfair labour practice?” (2009) 30 ILJ 1431

 


 

1(2008) 29 ILJ 1369 (SCA)

2[2005] 7 BLLR 649 (SCA)

3(2007) 28 ILJ 897 (LC)

4See Ntsabo v Real Security CC [2004] 1 BLLR 58 (LC).


No information provided herein may in any way be construed as legal advice from ENSafrica and/or any of its personnel. Professional advice must be sought from ENSafrica before any action is taken based on the information provided herein, and consent must be obtained from ENSafrica before the information provided herein is reproduced in any way. ENSafrica disclaims any responsibility for positions taken without due consultation and/or information reproduced without due consent, and no person shall have any claim of any nature whatsoever arising out of, or in connection with, the information provided herein against ENSafrica and/or any of its personnel. Any values, such as currency (and their indicators), and/or dates provided herein are indicative and for information purposes only, and ENSafrica does not warrant the correctness, completeness or accuracy of the information provided herein in any way.

 

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