1. INTRODUCTION
Bullying in the workplace is not only a violation of professional standards, it is a violation of human rights and an ethical failure that impacts the dignity and well-being of employees. In South Africa, bullying infringes on constitutional rights such as dignity, equality, and security, making it both a legal and moral issue for employers. With the rising awareness of these challenges, companies must not only develop comprehensive anti-bullying policies, but also commit to training their staff to recognise and prevent bullying. ProEthics, a leader in workplace ethics, provides specialised training programs that help businesses fulfil their legal obligations while fostering an inclusive and respectful work environment. Our training goes beyond compliance, ensuring companies can effectively combat bullying and enhance productivity by promoting a culture rooted in ethics and respect.
Having recently attended an event called Workplace Bullying – Psychological Safety in the Hybrid Workplace, at the University of Pretoria’s Centre for the Future of Work, this phenomenon was once again brought to the attention of ProEthics, specifically in terms of how it interacts with ethics and South African law. Dr Ngao Motsei, the keynote speaker at the event, highlighted common misconceptions about bullying, explaining that it’s not just the small or soft-spoken who can be targeted. She also shared how many people, like herself, may not even realise they are victims of bullying. This event, held during International Freedom from Bullies Week (Oct 13-19), inspired the following research article, which will explore how bullying in the workplace transgresses constitutional rights, analyse the various legal frameworks designed to combat such behaviour, and highlight the practical (and legally obligated) steps companies can take to address this pervasive issue.
2. THE SOUTH AFRICAN CONSTITUTION: THE FOUNDATION OF ALL LAW
South Africa’s Constitution is the supreme law of the land, setting a legal and ethical foundation for all other laws. When addressing workplace bullying, it is crucial to understand that the Constitution provides fundamental protections that must be upheld in all areas of life, including the workplace.
The Bill of Rights, enshrined in Chapter 2 of the Constitution, is particularly significant in this regard.
Workplace bullying infringes on several human rights, particularly:
• The Right to Dignity (Section 10): Every individual has the inherent right to have their dignity respected and protected. Workplace bullying, whether verbal, emotional, or psychological, is a direct attack on a person’s dignity.
• The Right to Equality (Section 9): This includes protection against unfair discrimination, and bullying often manifests as targeted harassment based on race, gender, sexual orientation, or other protected grounds.
• The Right to Freedom and Security of the Person (Section 12): This guarantees freedom from violence and emotional harm. Bullying, particularly when persistent, can amount to psychological violence and emotional abuse, undermining this right.
All South African laws, including those governing workplace conduct, are subordinate to the Constitution. Therefore, any form of bullying, which directly undermines constitutional rights, is unlawful.
South African employers are not only bound by labour laws but also by their constitutional duty to ensure that workplaces are environments where the rights to dignity, equality, and freedom from harm are protected.
3. LEGAL FRAMEWORKS ADDRESSING BULLYING IN THE WORKPLACE
In addition to the overarching protections offered by the Constitution, South Africa has developed several legislative measures that aim to address bullying, especially within the workplace. These laws provide practical recourse for employees who experience bullying and set clear expectations for employers regarding their duties to prevent and address such conduct. A key part of this is ensuring that employees and management are trained to recognise, prevent, and address bullying in the workplace, which not only aligns with legal obligations but also fosters a healthier, more productive work environment.
3.1 THE EMPLOYMENT EQUITY ACT 55 OF 1998 (EEA)
The Employment Equity Act is one of the most significant pieces of legislation addressing bullying in the workplace. The Act prohibits any form of unfair discrimination in the workplace, including harassment and bullying. It obliges employers to create a safe and equitable work environment, free from any form of discrimination, harassment, or victimisation. Workplace bullying can often manifest as racial or gender-based harassment, which directly violates the EEA.
Employers are required to take proactive steps to prevent bullying by:
• Establishing clear anti-bullying policies.
• Ensuring that employees are educated about their rights and the standards of workplace behaviour.
• Investigating and addressing complaints of bullying in a timely and effective manner.
Failing to comply with these obligations can lead to severe legal consequences for employers, including
fines and compensation claims by affected employees.
3.2 THE LABOUR RELATIONS ACT 66 OF 1995 (LRA)
The Labour Relations Act governs workplace conduct and includes provisions related to unfair dismissal and constructive dismissal. Employees who are bullied in the workplace may seek relief under the LRA if they feel forced to resign as a result of persistent bullying. Constructive dismissal occurs when an employee’s working conditions become intolerable, forcing them to resign. In such cases, the bullying behaviour of the employer or colleagues may be deemed a fundamental breach of the employment contract.
Under the LRA, employees who believe they have been constructively dismissed due to bullying can approach the Commission for Conciliation, Mediation and Arbitration (CCMA) to seek redress. If successful, the employee may be awarded compensation or reinstatement.
3.3 THE OCCUPATIONAL HEALTH AND SAFETY ACT 85 OF 1993 (OHSA)
The Occupational Health and Safety Act obliges employers to provide a safe working environment. While OHSA typically deals with physical safety, it also extends to psychological safety. Employers must ensure that employees are not subjected to any form of bullying or harassment that could harm their mental well-being.
Workplace bullying can lead to serious psychological harm, including anxiety, depression, and posttraumatic stress disorder (PTSD). Employers who fail to take reasonable steps to prevent bullying or address complaints may be held liable for creating an unsafe working environment under OHSA
3.4 THE CODE OF GOOD PRACTICE ON THE PREVENTION AND ELIMINATION OF HARASSMENT IN THE WORKPLACE (2022)
The 2022 Code, issued under the Employment Equity Act, significantly broadens the understanding of harassment and bullying in the workplace. It replaces the previous 2005 Code and acknowledges that all forms of harassment – whether based on gender, race, ethnicity, sexual orientation, or other characteristics – constitute unfair discrimination and an abuse of power. This updated framework places a heavier responsibility on employers to create a safe and harassment-free working environment.
3.4.1 Definition
The Code dispels any ambiguity about the meaning of harassment, defining it simply as any unwanted conduct that impairs an employee’s dignity or creates a hostile or intimidating environment. It covers a range of behaviours such as verbal bullying (threats, insults, discriminatory language), psychological harassment (emotional abuse, mobbing), and passive-aggressive harassment (gossip, exclusion). The behaviour is most often repeated over a period of time, forming a pattern of abuse. This definition aligns closely with constitutional protections under Section 25 of the Bill of Rights, which guarantees employees the right to a work environment that does not harm their health or well-being.
3.4.2 Employer Liability and Responsibility
The Code further emphasises employers’ vicarious liability under the Employment Equity Act (EEA), requiring them to provide not only a physically safe workplace but also a space free from psychological harm. Employers can then be held responsible for harassment from third parties (e.g., clients), obliging them to take reasonable steps to protect employees.
4. THE ROLE OF COMPANY POLICY IN ADDRESSING BULLYING
Given the significant impact of bullying in the workplace, it is essential that companies develop and enforce comprehensive anti-bullying policies. These policies should align with South Africa’s legal frameworks and constitutional principles, providing clear guidelines on acceptable behaviour and the procedures for addressing bullying complaints.
4.1 DEVELOPING AN ANTI-BULLYING POLICY
A robust anti-bullying policy should be tailored to the specific needs of the organisation while ensuring compliance with South African law. The new Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace holds that the policy should include:
• A clear definition of bullying, including examples of verbal, physical, emotional, and cyberbullying (preferably using the Code’s own definition).
• A statement of the company’s commitment to providing a safe and respectful work environment.
• A detailed procedure for reporting and investigating bullying incidents, meaning employers must recognise and address hostile work environments where bullying affects well-being and job performance, even when indirect. They must adopt zero-tolerance policies, provide confidential reporting mechanisms, and ensure complaints are treated with urgency.
• A clear outline of the consequences for employees found guilty of bullying, including disciplinary action or dismissal, proportionate to the severity of the offence.
• A strong commitment to providing training for employees and management on recognising, preventing, and addressing bullying. This is not only a legal requirement under the Employment Equity Act but also an ethical responsibility. Regular training helps raise awareness and ensures that all employees understand acceptable behaviour and the steps they can take if bullying occurs.
4.2 IMPLEMENTING THE POLICY
It is not enough to simply create an anti-bullying policy; it must be effectively implemented and enforced. This includes ensuring that all employees are aware of the policy and understand their rights and responsibilities. Management should be trained to recognise signs of bullying and equipped with the skills to handle complaints in a fair and impartial manner.
Regular reviews of the policy should be conducted to ensure that it remains effective and up-to-date with legal developments. Additionally, providing access to support services, such as employee assistance programmes or counselling, can help victims of bullying cope with the emotional impact.
4.3 CREATING A CULTURE OF RESPECT
Beyond policy, companies should focus on fostering a culture of respect and inclusion within the workplace. This involves promoting open communication, encouraging teamwork, and setting a tone of zero tolerance for any form of bullying or harassment. Senior leadership must lead by example, demonstrating the values of respect, empathy, and accountability.
ProEthics specialises in providing these essential ethics and workplace bullying training services to ensure your organisation meets its legal obligations while fostering a culture of respect and inclusion. Our training helps employees and managers better understand their roles in preventing harassment, ensuring compliance with the latest legal frameworks and promoting a safe, productive workplace.
5. CONCLUSION
Bullying in the workplace is not only a violation of ethical and professional standards, but also a breach of constitutional rights in South Africa. As the highest law of the land, the Constitution mandates the protection of dignity, equality, and security for all individuals, including employees. Employers have a legal obligation to address workplace bullying through comprehensive policies, effective enforcement, and a commitment to creating a safe and supportive work environment. Failure to do so can result in significant legal, financial, and reputational consequences, ultimately harming both employees and the organisation as a whole.
Beyond legal requirements, providing training on bullying prevention is the ethical thing to do. Companies that commit to regular training and awareness initiatives not only protect their employees, but also boost workplace morale and productivity. Addressing bullying head-on reduces employee turnover, improves mental health outcomes, and promotes a culture of collaboration and mutual respect. By partnering with ProEthics, employers can implement industry-leading training programs that educate teams on how to prevent and handle bullying, creating a work environment that is not only legally compliant but also ethically sound.
By Erik Minnaar, ProEthics (Pty) Ltd, 22 October 2024
Contact ProEthics for a free quote if you’re interested in attending an anti-bullying training course, info@proethics.co.za