Although statistical information on workplace bullying in South Africa is scarce, a recent study found that 70% of participants stated that they had been subject to bullying at work. Worryingly, the study also found that employees who were subjected to it were more likely to be intent on leaving their employment and, by their account, were less motivated and less productive.

Workplace bullying has a profound impact on employees, companies and society. We are frequently at the behest of Machiavellian leadership approaches that favour the company’s bottom line over employee wellbeing. The traditional ruthless leader manifests several capitalist values that favour profits over people. He (and I use this pronoun purposefully) is lauded for being a no-holds-barred competitor, a take-no-nonsense cost-cutter and a push-the-ethical-envelope negotiator. He directs from the top with absolute control, with a simple message: “Do what I say!” Human casualties be damned. Constitutional values such as humanness, ubuntu and social justice are viewed as weaknesses.

Despite the significant damage incurred by us all at the hands of such leaders, no tailor-made remedies exist in our law to deal with workplace bullying. Our common law recognises that the employer has an implied obligation not to act in a way that is likely to disrupt or damage the employee’s relationship of confidence and trust. Employees could arguably claim a breach of the reciprocal duty where the employer behaves in an uncaring or abusive manner.

No legislative definition of the concept is provided for in labour legislation and scholars have often disagreed about how the phenomenon should be understood. However, what is clear is that bullying at work can include harassing, offending, socially excluding, or negatively influencing someone’s work tasks. 

It often manifests as insults and shouting, disrespectful or humiliating conduct towards others, using sarcasm, blaming employees for honest mistakes or mistakes that aren’t their fault, excessive monitoring, constant nitpicking, intentionally overloading employees, and excluding employees from conversations and workplace processes. 

Bullying includes a broad spectrum of insulting, degrading, or victimising behaviour that reduces an employee’s self-esteem or confidence and may influence their dignity. It can be a single act or be recurring. It can also be escalating in nature, especially when the bully realises that they can get away with their actions. It frequently entails the abuse and mistreatment of someone less powerful by someone more powerful.

Labour legislation only addresses aspects of bullying in a piecemeal fashion. First, it can be dealt with as an instance of harassment. Section 6(3) of the Employment Equity Act 55 of 1998 (EEA) 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.

These grounds include 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 and birth. 

Harassment is only unfair discrimination if it is based on one of the grounds provided for in section 6(1) of the EEA. South African law deals more extensively with cases of sexual harassment, while harassment on other grounds remains poorly explored. 

The remedies afforded by the Act, which include damages and compensation awards, are available only if harassment is based on one of the listed grounds and does not address instances of bullying that occur, for example, because of professional jealousy or because an employee does not perform their tasks in a way required by the bully. Even if these employees are not maltreated because they possess a specific immutable characteristic, the human dignity of these employees may equally be affected.

Second, employees who have been victims of bullying at work can claim that they have been constructively dismissed. According to section 186(1)(e) of the Labour Relations Act 55 of 1996 (LRA), a constructive dismissal means that an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee. 

Although the termination of employment occurs at the employee’s initiative, the law considers it a dismissal because the employer’s actions forced the termination of employment. Constructive dismissal is the primary legislative remedy used to deal with instances of bullying in the workplace that is not based on an immutable characteristic. 

Still, it invariably focuses on compensation for the bullying rather than a remedial or therapeutic approach to resolving the situation and preserving the job. Because the employee will have to prove that continued employment was intolerable, compensation will be preferred over and above remedies such as reinstatement or reemployment. Compensation is, however, limited to a maximum of 12 months’ remuneration in ordinary order circumstances and a maximum of 24 months’ remuneration if the dismissal is found to be automatically unfair. 

Bullied employees would effectively have to resign, and they would have to prove that the prospects of continued employment had become “intolerable”. Intolerability has been interpreted to mean more than everyday workplace irritations, frustrations, and tensions and implies a situation insufferable and too great to bear. Mere unhappiness is not sufficient to justify a claim of constructive dismissal. 

In practice, constructive dismissals are notoriously hard to prove. As such, it may be questioned if the constructive dismissal remedy is an effective strategy to deal with instances of bullying. This remedy will just not be an option for many South Africans who are dependent upon their jobs to provide for their families, even though their dignity may be demeaned by bullying at work.

Third, the unfair labour practice remedy is a viable avenue for pursuing a charge of bullying. Section 186(2) of the LRA defines unfair labour practices as conduct relating to promotion, demotion, training, or the provision of benefits (often manifestations of bullying). 

Additionally, the definition encompasses the occupational detriments that whistleblowers may face due to their actions, as defined by the Protected Disclosures Act 26 of 2000. If an employee can link bullying in the workplace to any of these categories, a dispute can be referred to the CCMA or the bargaining council. The primary benefit of utilising unfair labour practice provisions is that they act as an external grievance mechanism capable of re-establishing, preserving, and improving the employment relationship.

Nonetheless, it must be noted that litigating against one’s employer is in practice dangerous to an employee as it may be destructive to the employment relationship and, despite the potential for short-term gain, may provoke other forms of bullying. The list of unfair labour practices is exhaustive. Although the manifestations of workplace bullying identified above may therefore be dealt with using this remedy, employees who have been victim to bullying at work, where the conduct is not related to promotion, demotion, training or the provision of benefits, will not be able to rely on the remedy.

It is unfortunate that only the most extreme cases of bullying in the workplace, such as assault, harassment, discrimination on protected grounds and constructive dismissal, have meaningful protection under the current legal machinery of South Africa. A possible solution may be to include a new category of “workplace bullying” within the definition of unfair labour practice. The labour courts, CCMA and bargaining councils may then decide for themselves, based on criteria such as fairness, equality and human dignity, what amounts to bullying and what does not. 

This proposal may seem too vague for some, but our labour institutions have previously been tasked to give life to similarly vague terms with great success. Take, for example, the vague concept “unfair labour practice” as contained in section 23 of the Constitution. When the concept was first introduced in South Africa, it was defined as “any labour practice that in the opinion of the Industrial Court is an unfair labour practice”. 

In effect, the former Industrial Court was therefore given extensive discretion to decide what conduct amounted to unfair labour practices and what did not. From here, most of the South African labour law developed. A similar strategy aimed at addressing bullying could serve South Africa well. Indeed, it may be argued that section 186(2) of the LRA falls foul of the constitutional guarantee that everyone has the right to fair labour practices in not explicitly protecting against bullying in the workplace.

There may be many reasons for workplace bullying. As human beings, superiors may respond in anger or frustration. It may also be true that it can be learnt behaviour. It has been documented that those who complain of being bullied often repeat the same behaviour when they accede to more senior positions. The problem is that this behaviour is often rewarded as being no-nonsense, decisive and driven.

While these strategies may be beneficial in the short term, they ultimately lower morale and productivity and drive employees from the organisation. Effective labour law recourse can significantly assist employees who find themselves victims. The societal impact of these remedies will ultimately benefit us all. DM/BM