With many South Africans being forced back into the office the worrying issue of workplace bullying has raised its head and is a real issue for not only employees but also the employer.
Recent attention has also been placed on bullying in the hospitality industry after whistleblower and social media influencer Mihlali Nobavu drew attention to the toxic culture and exploitation that she experienced at Babel Restaurant.
Nobavu’s story resonated with thousands of South Africans and created a firestorm that led to the Labour and Home Affairs Department getting involved.
Nobavu’s first-hand account of the bullying she experienced at Babel via her superiors on her hair choices and what she wore was something that several other waitresses have experienced.
Her comments section on her TikTok account was flooded with messages of support but also fellow workers commiserated with her on their shared experience.
How to know if you are being bullied?
Anja van Beek, a talent strategist, and Human Resources (HR) expert said that bullying isn't just about aggressive behaviour; it is about power dynamics.
“In South Africa, workplace bullying often goes unreported because of fear of retaliation or disbelief,” she explained.
Van Beek noted that, unlike more explicit forms of workplace misconduct, bullying is often insidious, taking the form of subtle behaviours that, over time, can erode an individual’s confidence, wellbeing, and professional performance.
The HR expert explained that workplace bullying can be defined as repeated, and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.
“Workplace bullying is usually seen as acts or verbal comments that could psychologically or 'mentally' hurt or isolate a person in the workplace,” she added.
Behind closed doors
Van Beek noted that bullying is something that is difficult to stop.
She noted that one of the main reasons for this is that it is difficult to prove as it often takes place behind closed doors or in subtle ways that leave little evidence.
“Additionally, the lines between firm management and bullying can be blurred, leaving employees confused about whether their experience qualifies as bullying,” Van Beek acknowledged.
It is important to note that South Africa’s legal framework for addressing bullying is still evolving.
“While the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace provides some guidelines, there is still a lack of clear legal philosophy on corporate bullying. This leaves many employees without a clear path to seek justice, especially when the bullying is more subtle,” Van Beek said.
Types of bullying
Workplace bullying can manifest in a number of ways and Van Beek provides a few scenarios:
The excluder: When a supervisor routinely excludes you from important meetings or key decisions that impacts you work. You therefore feel isolated and undervalued.
The micro-manager: When your manager scrutinises every tiny detail of your work, making you redo tasks unnecessarily and frequently criticising you in front of others. The constant micromanagement can cause you stress and anxiety, and impedes your work quality.
The hindrance manager: A scenario not uncommon in workplaces involves supervisors deliberately changing work arrangements, such as rosters and leave schedules, to inconvenience a particular employee. This kind of targeted behaviour forces a worker into a stressful position where they have to choose between their job and their personal commitments.
The task over loader: This is when you are given tasks that are unreasonably beyond your skill level, without the necessary support or guidance. Simultaneously, you could also be assigned menial tasks that are far below your capabilities. This inconsistent workload creates confusion, frustration, and a sense of inadequacy, making it impossible for you to find your footing or showcase your true potential.
What can be done?
Celesté Snyders, a lawyer at Schoeman Law Inc specialising in commercial law and intellectual property law noted that under South Africa’s Employment Equity Act 55 of 1998 (EEA), bullying in the workplace is considered a form of unfair discrimination and is strictly prohibited.
Snyders added that employers should implement an anti-bullying policy within their organisations.
“Such a policy educates employees about what constitutes bullying. It establishes clear, consistent procedures for addressing bullying incidents. It aims to prevent the recurrence of bullying and ensures that employers take proactive steps to create a safe and healthy workplace,” she explained.
You are entitled to compensation
Snyders said that if an employer fails to take the necessary steps to eliminate bullying, employees have legal recourse.
Employers have a duty and are legally responsible for maintaining a safe and healthy work environment.
“Failure to fulfil this obligation constitutes an infringement. As a result, the employer may be liable to pay damages or compensation to the victim of bullying,” Snyders added.
As an employee, you have the right to refer the matter to the Commission for Conciliation, Mediation, and Arbitration (CCMA) if you feel that your voice has not been heard and that your employer has failed to take action.
“Unsatisfied employees can refer unfair discrimination disputes to the CCMA. This provides a formal avenue for resolving issues when employers do not adequately address bullying,” she said.
Mkhize vs Dube Transport
Bradley Workman-Davies, a Director at Werksmans Attorneys said that in 2019 a landmark case was taken to the CCMA.
The case of Mkhize and Dube Transport was a case whereby an employee referred a complaint for bullying to the CCMA as an unfair dismissal claim.
Workman-Davies noted that the CCMA exercised its discretion to assess the real reason for the employee’s referral, and determined that although the employee had referred a dispute for unfair dismissal, the true complaint was about victimisation in the workplace.
“The employee had alleged that the HR manager of the employer was bullying and victimising her, both inside and outside of the workplace, and that although she had ultimately been dismissed for medical incapacity, the employer had actually sought to use this as a convenient method to get rid of her after having lodged a grievance about the bullying allegations,” he explained.
“Although the CCMA didn’t have to contend with the facts of the matter, it confirmed that where an employee has a dispute about bullying, victimisation or harassment, although the CCMA can always conciliate the dispute if the parties fail to agree on a resolution, the next step (arbitration) must be at the Labour Court, as the dismissal then could be an automatically unfair dismissal, which the Labour Court has exclusive jurisdiction to determine.”
The CCMA commissioner found that where the true reason for the dismissal was bullying and victimisation. The dismissal would then be referred to the Labour Court as an automatically unfair dismissal.
Workman-Davies noted that bullying is a form of harassment, and can be dealt with in terms of the EEA as unfair discrimination.
He said that bullying has also been confirmed in the Private Sector Workers Trade Union.
Lastly, Workman-Davies said that employers should be aware that instances of workplace bullying should be dealt with in an expedient fashion.
He noted that you as an employee can be entitled to as much as 24 months of remuneration and more if your case is ruled favourably by the CMMA.
“Employers should be aware that instances of workplace bullying should be dealt with quickly and decisively and that bullying should not be tolerated in the workplace, as a failure to do so may expose the employer to up to 24 months remuneration if the employee is found to have been dismissed due to the bullying, and unlimited compensation claims if the employee is found to have been the victim of unfair discrimination due to the bullying,” Workman-Davies explained.
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