“The modern workplace is not a garden of friendly Buddhas smiling upon us” – it has become cutting-edge, cut-throat, and is a breeding ground for interpersonal violence, inclusive of bullying and (sexual) harassment. In South Africa, the country’s notorious problem with violence in broader society is perhaps partly to blame. Yet, when workplace bullying or harassment intersects with employee depression, this could be a problem that very few workplaces can cope with.

The issue of workplace violence undoubtedly requires attention: from the 1944 Declaration of Philadelphia to the 2019 International Labour Organisation Recommendation 206 and Convention 190, both of which call for a world of work free from violence and harassment. South Africa’s National Development Plan, too, confirms every person’s right to a working life that is conducive to productivity and embraces freedom, equality, human dignity, and security. Despite their core right to physical and psychological integrity, millions of workers worldwide suffer from the scars of workplace violence; nevertheless, South African employers and lawmakers remain sluggish in their responses. South Africa is yet to sign ILO Convention 109/2019 dealing with and preventing all forms of violence against women and men in the workplace. The Revised Draft Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (dated 30 March 2021), inclusive of sexual harassment, bullying, and racial harassment, has been tendered before Parliament once again. This is, however, merely a guiding document that encourages employers to adopt policies in this regard, and there is no sanction for non-compliance with such a code.

Violence

In their 2019 research, Escribano et al. suggest that violence at work refers to “intentional verbal and physical actions (verbal abuse, physical assaults, harassment, bullying, intimidation, threatening, discrimination, etc.)”, all within a specific organisational culture (Escribano, Beneit and Garcia, 2019:4). Workplace violence, the authors continue, is a form of aggression intended to cause physical or psychological harm, which, in turn, challenges the safety, well-being and health of professionals and affects entire organisations. Workplace violence, of which bullying and sexual harassment form an integral part, not only leads to physical harm, but also includes non-physical harm such as cognitive effects (disbelief and a threat to personal integrity), emotional effects (anger and sadness), social effects (insecurity, impaired relationships with colleagues, and damage to social identity), and, of course, psychological effects (such as anxiety, irritability, depression and, at its worst, post-traumatic stress disorder (PTSD)). Violence also has negative effects on the employer in that worker relations, engagement, productivity, and the reputation of the enterprise suffer. This excludes costs incurred in terms of legal fees, absenteeism, and high staff turnover.

South African employees come to work already stressed and anxious, and then we add bullying and sexual harassment to these workplaces, and yet we expect high performance from our employees. Societal violence in South Africa is problematic. We have been dubbed the rape capital of the world – with a sexual offence being reported every 25 seconds; an average of 58 murders are reported per day, and a general increase in interpersonal crime year on year has been reported by Stats SA. The most vulnerable remain females in a working environment.

Bullying

In South Africa, bullying is not a cause of action in itself; the New Amended Draft Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (dated 30 March 2021) has been tabled before Parliament again but has not yet been signed into law. According to this guiding document, bullying is seen as a form of violence and harassment in South Africa, and employers are merely encouraged to adopt policies
in line with ILO Convention 109/2019. Bullying is reportedly the most adverse type of social behaviour worldwide. It does not only include physical behaviour, but also psychological ‘warfare’. It can occur as a once-off act or as repeated negative acts perpetrated over time. Seventy percent of bullying is suffered by employees from management, but employees can also muster the power to bully employers; bullying can also occur between employees. These are all acts for which the employer could be held vicariously liable, if not addressed. The power differential lies at the heart of bullying. Thirty percent of employees in a limited study in South Africa reported being bullied, but in an earlier study, the International Labour Organisation (ILO) found that 80% of South African employees reported having been exposed to violence.

Different countries are dealing with bullying differently; the United Kingdom treats it as a violation of dignity, the United States of America deals with bullying as a form of unfair discrimination (if it falls within one of the five protected grounds). Australia deals with it in health and safety legislation, Nordic countries have specific legislation prohibiting and dealing with bullying or mobbing at work, and France has criminalised bullying.

Bullying is costly to organisations in terms of lost productivity, turnover of the wrong people, legal costs, absenteeism, workdays lost, and bad reputation. It can manifest overtly and covertly and the intent to bully is not a prerequisite for bullying to occur. Examples of bullying can be social exclusion, taking credit for another’s work, withholding important information or manipulation of information received, to mention but a few. Bullying costs Australian workplaces $36 billion per year, and in the USA, 41% of bullied women and 36% of bullied men left their jobs due to bullying.

The ill effects of bullying on the targets thereof include depression, physical ill health, increased stress responses and PTSD, and it presents major problems that need to be addressed in itself.

Sexual harassment

There is no firm definition of sexual harassment in South Africa, but a Code of Good Practice dealing with Sexual Harassment at work (which forms part of the Employment Equity Act), sets out a test and places obligations on employers and employees. The employer could be held vicariously liable in terms of certain legal requirements if an employee is guilty of sexual harassment. There are no reliable statistics to indicate the severity of the problem, which is regarded as a gap in the law pertaining to sexual harassment in South Africa. What is known, is that ‘toxic masculinity’ and the power differential are some of the reasons why sexual harassment is still rife in South Africa. In the United States, for instance, one in three women is believed to have faced harassment in the workplace, yet 70% of women say they have never reported it.

In terms of causes, many instances of sexual harassment involve a power differential, with older men in authoritative positions being the perpetrators. (See SA Broadcasting Corporation Ltd v Grogan NO 2006 (27) ILJ 1519 (LC) 1532A; Gaga v Anglo Platinum Ltd 2012 BLLR 285 (LAC)). The social-cultural theory of sexual harassment implies that sexual harassment is often used by males to demonstrate their perceived superiority over females (Khumalo, Gwandure and Mayekiso, 2015:106.) Where males sexually harass fellow males, it could be seen as a demonstration of the perpetrator’s manhood and power by undermining the masculinity of his victim (Khumalo, Gwandure and Mayekiso, 2015:107). For more information on the power differential, see the UN Women Handbook addressing Violence and Harassment against women at work (2019) available at
https://www.unwomen.org/-/media/headquarters/attachments/sections/library/publications/2019/addressing-violence-and-harassment-against-women-in-the-world-of-work-en.pdf?la=en&vs=4050). [1]
Some of the ill effects of sexual harassment are depression, PTSD, physical illness, and even disability could follow sexual harassment victims (for the full article, see http://dx.doi.org/10.17159/2077-4907/2021/ldd.v25.2). [2] Employers also carry direct and indirect costs where sexual harassment has occurred.

Depression

Sixty-five percent of bullying victims displayed symptoms of depression up to five years after having been bullied. A grey area in South African law is where depression does not lead to disability, but the depressed employee has to be reasonably accommodated by the employer; this presents a problem that needs to be addressed in future.

Many employees lose or leave their jobs after bullying or when they were targets of sexual harassment. In a country such as ours where unemployment figures have reached an all-time high and the loss of a job is equated to a ‘financial death sentence’, we need to pay attention to workplace violence, bullying, and harassment, and take note of depression as an ill effect that should not only be managed in the workplace, but also be prevented.

Prof (Assoc.) DM (Denine) Smit, Department of Mercantile Law, Faculty of Law, University of the Free State