New case deals with a South African who was bullied at work – here’s what happened

 ·7 Jul 2019

While many South African employees may be familiar with the processes around hiring and firing, fewer may know the law around being bullied at work.

This is according to Bradley Workman-Davies, a director at Werksmans, who said that when it comes to bullying in the workplace, the path towards a resolution is often not clear.

“In terms of existing labour laws, bullying is not specifically defined or referred to in any of the legislation, including the Labour Relations Act, the Basic Conditions of Employment Act, or the Employment Equity Act,” he said.

“However, the Employment Equity Act in section 6(1) does contain a prohibition against unfair discrimination.”

This section states that:

No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground.

Section 6(2) also provides 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).”

“Generally, bullying will be recognised as harassment, and therefore unfair discrimination,” said Workman-Davies.

“Even if the reason for the bullying is not one of the listed grounds (race, gender, etc.) provided that the reason can be demonstrated, a case for harassment can be made out.”

Case law

In a recent case, an employee referred a complaint for bullying to the CCMA as an unfair dismissal claim.

The employee alleged that her 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.

“The CCMA confirmed that where an employee has a dispute about bullying, victimisation or harassment, although the CCMA can always conciliate the dispute, if the parties fails 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,”said Workman-Davies.

This approach – that bullying is a form of harassment, and to be dealt with in terms of the EEA as unfair discrimination – was also recently confirmed in a separate CCMA case, he said.

“If the employee has not been dismissed and remains employed, the appropriate referral would be for unfair discrimination in terms of the EEA.

“If the employee has been dismissed, the appropriate referral would be for automatically unfair dismissal (based on unfair discrimination).

Interestingly the Labour Court has found that these two referrals are not mutually exclusive, and a dismissed employee may refer both claims simultaneously, said Workman-Davies.

“As such, 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.”

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