South Africa: What Must Happen When Bullying Occurs in the Workplace?

What should employees do if they feel like they are experiencing bullying or any other form of harassment in the South African workplace, and what duties do employers have in this regard? Here is a 10-step guide for employers and employees dealing with bullying in the workplace.

1. An employee who feels bullied (Complainant) should first establish whether the conduct they experienced amounts to bullying. In this regard, employers are obligated, under the South Africa Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (Code), to put a harassment policy in place that defines bullying in the workplace using ordinary language.

2. The Complainant should make a record of the conduct that they view as bullying. This record may be useful at a later stage if the conduct being complained about persists.

3. The Complainant should report the conduct as soon as possible, in line with the employer’s harassment policy. Depending on the nature of the alleged conduct, once it has been reported, and if the Complainant is comfortable doing so, the Complainant should inform the alleged perpetrator that the conduct is unwanted and explain its impact. Alternatively, if the Complainant is not comfortable addressing the alleged perpetrator directly, the company should assist in dealing with the matter on an informal basis (for example, by arranging for another appropriate employee to discuss the matter with the alleged perpetrator on the Complainant’s behalf, with or without disclosing the Complainant’s identity).

4. If appropriate, the company must follow a formal procedure, which may be provided in its harassment policy. This step should happen if the alleged perpetrator persists with the unwanted conduct after being notified that the conduct is unwanted. Alternatively, this step can happen if the alleged conduct is of such a serious nature that the Complainant or the company believes that a formal approach is warranted.

5. The company must inform the alleged perpetrator of the allegations against them.

6. The company must conduct an assessment as to whether the alleged perpetrator poses a risk to the Complainant, other employees, and/or potential witnesses. In this regard, a determination should be made whether the alleged perpetrator must be placed on precautionary suspension, relocated within the business, or requested to work from home, or if the Complainant should be requested to work from home pending finalization of the investigation and subsequent processes, if any.

7. The company must conduct an investigation. In terms of the Code, employers are obligated to investigate all allegations of harassment. Depending on the circumstances, the investigation may take place in-house or the company may consider appointing an external person to conduct the investigation. The person appointed to conduct the investigation must be well-versed regarding the law as it pertains to harassment in the workplace.

8. The company must consider the outcome of the investigation and the recommendations made, which may include mediation, counseling, and disciplinary action.

9. The company must provide feedback to the Complainant and alleged perpetrator about the outcomes of the investigation and next steps, if any.

10. The company must select an appropriate person, internal or external, to assist with implementing the recommendations arising from the investigation.

Sibusiso Dube is an attorney with Bowmans, a member firm of Lex Mundi, in Johannesburg. © 2024 Bowmans. All rights reserved. Reposted with permission of Lexology.