Sibusiso Dube | Partner | Bowmans | mail me |
Employers and managers have the prerogative to set workplace rules and standards, including performance standards and harassment policies. Oftentimes, managers come across as being harsh, bullish, dismissive, or overly critical when attempting to enforce certain workplace standards.
It is important for employers and their employees to understand when such conduct may cross the line. It may be regarded as a breach of a harassment policy.
Bullying and harassment in the workplace
The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (Code) provides that the following conduct may be regarded as examples of harassment:
- Conduct that humiliates, insults, or demeans an employee.
- Threats.
- Insults.
- Constant negative judgment and criticism.
- Bullying.
- Intimidation.
- Sabotaging or impeding the performance of work.
- Emotional abuse (psychological harassment).
- Sarcasm.
- Condescending eye contact, facial expressions, or gestures.
- Deliberately causing embarrassment and insecurity.
- Marginalisation.
- Racial harassment, among others.
Other generally accepted examples of harassment, as set out in the case of Solid Doors (Pty) Ltd v Theron & Others, include, but are not limited to: yelling, screaming, angry outbursts or temper tantrums, nasty, rude, and hostile behaviour, insulting or belittling conduct, and finger-pointing or slamming or throwing objects.
Exercising managerial prerogative vs harassment
Even though the examples provided above often feature in workplace harassment policies, a distinction should still be drawn. This is between a manager exercising their managerial prerogative and conduct that may amount to harassment.
For example, employees may complain about a manager being harsh, overly critical, or shouting at them. This conduct may induce anxiety or psychological harm. On the face of it, this sounds like harassment, and it may be supported by a harassment policy. However, upon closer inspection, this conduct may not necessarily amount to harassment.
The context in which the conduct complained of occurred is very important. If a manager behaved as described above in response to poor performance or insubordination, then it is unlikely that the manager would be found guilty of harassment. Instead, the manager may be regarded as a bad manager or leader. This manager may not know how to lead or communicate with their team to enable them to perform at their best. This is especially true where the conduct appears to be sporadic and not targeted at a particular individual or group.
Labour Court
Last year, the Labour Court in La Foy vs Department of Justice and Constitutional Development and Others confirmed that a distinction must be made. This is between harassment (as a form of unfair discrimination) and the exercise of managerial functions.
Because of the grammatical meaning of ‘harassment’, it may be easy for an employee to consider the exercise of managerial powers as harassment. In this case, the court considered the allegations raised by the employee. It found that, objectively judged, the conduct did not amount to harassment, but rather ‘unpleasant consequences of the exercise of management functions’.
One of the main considerations when making this distinction is the impact of the conduct on the employee. This includes whether it impairs dignity.
Verbal abuse and unreasonable expectations
In the case of Visser and Amalgamated Roofing Technologies t/a Barloworld, a case before the Commission for Conciliation, Mediation and Arbitration, it was held that it is unreasonable to expect managers to comply with saintly standards. It is understandable if, from time to time, there is verbal abuse. Whether verbal abuse may be excused depends on the frequency, vehemence, and surrounding circumstances. These factors emerge along with some stout paternalism.
Identifying the type of manager
Depending on the available evidence and context in which certain conduct manifests in the workplace, employers should first consider whether they are dealing with a ‘bad manager’ or a bully.
If an employer is dealing with a ‘bad manager’ or a poor leader, the issue should be resolved through a poor performance process. This is especially true when dealing with senior employees, as stringent performance improvement plans are relaxed.
If an employer is dealing with a workplace bully, the employee in question should be disciplined. This will largely depend on the availability and willingness of witnesses to testify, as well as the cogent evidence pointing to specific incidents of harassment.
Employers are required by the Code to have a harassment policy in place in the workplace. They must also investigate all allegations of harassment. These steps will assist employers in identifying the type of manager they are dealing with.
