By Sibusiso Dube
Employers and managers have a prerogative to set workplace rules and standards, including performance standards. Oftentimes managers come across as being harsh, bullish, dismissive, or overly critical in attempting to enforce certain workplace standards. It is important for employers and their employees to understand at what point such conduct may cross the line and be regarded as a breach of a harassment policy.
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; and 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 and slamming or throwing objects.
Even though the examples provided above often feature in workplace harassment policies, a distinction should still be drawn 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, which in turn induces anxiety or psychological harm. On the face of it, the conduct described sounds like harassment and this may be supported by a harassment policy.
However, upon closer inspection, such conduct may not necessarily amount to harassment. The context within which the conduct complained of occurred is very important. If a manager behaved as described above in response to, for example, poor performance or insubordination, then it is unlikely that such a manager would be found guilty of harassment.
Instead, it is more likely that such a manager can be regarded as a bad manager or leader who does not know how to lead or communicate with their team in a way that enables team members to operate at their highest level and in an environment that is favourable. This will be even more so where the conduct appears to be sporadic and not targeted at a particular individual or group.
Last year, the Labour Court in La Foy v Department of Justice and Constitutional Development and Others confirmed that a distinction must be made between harassment (as a form of unfair discrimination), on the one hand, and the exercise of managerial functions on the other.
Because of the grammatical meaning of ‘harassment’ it may be easy for an employee to consider the exercise of managerial powers to amount to harassment. In this case, the court considered the allegations raised by the employee and found that, objectively judged, they did not amount to harassment, but were rather ‘unpleasant consequences of the exercise of management functions’.
In this regard, one of the main considerations when making the distinction is the impact of the conduct on the employee and whether it impairs dignity.
In the case of Visser and Amalgamated Roofing Technologies t/a Barloworld, a case that came before the Commission for Conciliation, Mediation and Arbitration, it was held that it is unreasonable to expect managers to comply with saintly standards, and it is understandable if, from time to time, there is verbal abuse. Whether verbal abuse may be excused turns on the frequency, vehemence and surrounding circumstances, factors that emerge, along with some stout paternalism.
Depending on the available evidence and context within 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 – bearing in mind that stringent performance improvement plans are relaxed when dealing with senior employees.
If an employer is dealing with a workplace bully, then 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 that points to specific incidents of harassment.
Employers are required by the Code to have a harassment policy in place in the workplace and to investigate all allegations of harassment. These steps will assist employers in identifying the type of manager they are dealing with.
Sibusiso Dube is a partner at Bowmans
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