Is Your Company At Risk Of Inappropriate Workplace Behaviour? By Lisa-Anne King and Megan Anthony – Labour Department

Inappropriate workplace behaviour has become a hot topic with issues such as sexual harassment, workplace bullying and social media misconduct being in the spotlight.  This has resulted in a number of companies having to become introspective in order to ensure that their workplace behaviour policies and procedures are up to date and in compliance with the applicable legislation.

 

What is workplace behaviour?

Workplace behaviour is the manner in which employees respond to specific circumstances or situations in their respective workplaces.

Whilst there are many elements which determine an individual’s behaviour in the workplace, the culture of the employees and that of the organisation concerned are perhaps the most important.

It is therefore incumbent upon a company to ensure that its culture is a healthy one in which employees feel free, safe and protected and this in turn will enable them to work effectively and efficiently.

In the past, employees were often too scared to speak out against unwanted, unwarranted or inappropriate conduct in the workplace.  Even though there are still a significant number of employees who are reticent to come forward for fear of being victimised and potentially dismissed, there has certainly been a significant increase over recent years in disputes arising from discrimination and sexual harassment. Legislation has also become more focussed on these aspects.

Inappropriate conduct in the workplace can take many forms, the most common of which include sexual harassment, workplace bullying and social media misconduct.  Certain of these may also constitute a form of workplace discrimination amounting to a contravention of the Employment Equity Act 75 of 1997, as amended.

Sexual harassment has over the past years become the focus of significant world wide media attention and campaigns. For example, the “ME TOO”, “The Silence Breakers”, “Not In My Name”, “Out Your Pig” campaigns, have highlighted how prevalent this topic is and how employers can no longer turn a blind eye to conduct of this nature.

 

What is sexual harassment?

Sexual Harassment has been defined in the amended Code of Good Practice on the handling of Sexual Harassment cases as “Unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace…”

In the case of Rustenburg Platinum Mines Limited v UASA obo Pietersen (2018) 39 ILJ 1330 (LC), the Labour Court confirmed that sexual harassment in the workplace is not to be condoned.

In this case the complainant was subjected to frequent sexual advances by one Mr Pietersen over a period of 7 years. On numerous occasions, Mr Pietersen asked the complainant to sleep with him in return for a promotion and asked her to live with him so that he could “help” with her expenses.

Mr Pietersen was dismissed for misconduct and referred the matter to the CCMA, contending that he was unfairly dismissed.

At the CCMA the Commissioner held that the dismissal was unfair inasmuch as he found that Mr Pietersen had been encouraged to continue his sexual advances by the “docile conduct of the victim” and accordingly that such conduct did not amount to unwanted sexual harassment.

On review to the Labour Court, it was held that:-

“Silence, no matter how prolonged it may be, as the Commissioner ought to have known, does not amount to consent. A ‘docile’ response to sustained sexual harassment cannot be equated to an invitation. There is nothing that was presented before the commissioner that indicated that the complainant ‘inspired” Pietersen to continue with his deplorable conduct, and clearly the Commissioner misconceived the nature of the enquiry or went about the enquiry in the wrong manner”.

 

Social media misconduct

Significant problems have also arisen in the workplace through the use of social media. WhatsApp and Facebook communications for example have resulted in a number of senior employees finding themselves in extremely difficult situations.

Employees are notoriously casual in befriending and connecting with clients and colleagues who, once befriended, have access to very personal information concerning the employee, whose tendency is to post indiscriminately on social media.

An unthinking employee will sometimes post on social media private information concerning his or her company’s activities, launches and product development, thereby affording competitors the opportunity to obtain an unfair advantage and placing the company, its financial affairs and its relationship with its clients at risk.

The sooner companies realize that nothing on social media is private and the sooner that realisation is impressed on all of their employees, the sooner they can defend themselves against breaches of confidential information and business policies.

Private and working lives are becoming increasingly complicated through the use of social media and whilst the use of social media is undoubtedly a vital source of business and marketing for companies, it must always be borne in mind that employees are the face and voice of a company and their comments and conduct on social media will invariably be associated with the company and could adversely affect the company’s reputation.

Companies need to develop and implement appropriate social media policies in the workplace and employees need to be trained on the possible consequences of their unguarded conduct on social media and how it could negatively affect them and their employer.

The use of social media for private purposes can also have far reaching consequences.  In a recent case which attracted much media attention, a passenger on a Kulula flight was dismissed by her employer for sending a private sms which was racial and discriminatory in nature.  It is interesting to note that in this case the misconduct was not in the course and scope of the employee’s employment, yet her employer nonetheless chose to discipline and dismiss her for it. This clearly shows how the lines have become blurred and that all employees need to be circumspect in their use of social media, even if not in the workplace.

 

Workplace bullying

Workplace bullying is a form of harassment which may constitute unfair discrimination

It normally takes the form of regular abuse or intimidation by another employee over a period of time. It invariably hampers an employee’s performance and makes working life intolerable. Examples of workplace bullying include, inter alia, yelling, swearing, blaming the victim for another’s mistakes, taking credit for the victim’s work, ridiculing the victim and unrealistic work demands.

 

Liability of employers

Section 60 of the Employment Equity Act provides that;

  • If it is alleged that an employee, while at work, contravened a provision of this Act, or engaged in any conduct that, if engaged in by that employee’s employer, would constitute a contravention of a provision of this Act, the alleged conduct must immediately be brought to the attention of the employer.
  • The employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct and comply with the provisions of this Act.
  • If the employer fails to take the necessary steps referred to in subsection 2, and it is proved that the employee has contravened the relevant provision, the employer must be deemed also to have contravened that provision.
  • Despite subsection (3), an employer is not liable for the conduct of an employee if that employer is able to prove that it did all that was reasonably practicable to ensure that the employee would not act in contravention of this Act.

 

The failure by an employer to take reasonable steps, should it be proven that another employee contravened the Employment Equity Act, will result in compensation becoming payable to the victim by the employer. Legislation does not provide a limit to the amount of compensation that can be awarded against the employer and it remains within the discretion of the Court/Tribunal to determine an amount which it deems reasonable in the circumstances of the particular case.

 

So what can an employer do to avoid liability?

In order to avoid liability, it is for critical for employers to ensure that:-

  • there are proper policies and procedures in place to deal with, inter alia, discrimination, sexual harassment, workplace bullying and the use of social media;
  • these policies and procedures are implemented fairly and consistently throughout the company.

 

Whilst the governance of workplace behaviour has most certainly come a long way, there still remains a number of challenges to overcome.  Employers must be proactive in establishing and maintaining appropriate workplace behaviour so as to avoid liability.

In the light of the potential liability that could arise for employers, it is in our view of utmost importance for all employers to ensure that their workplace policies and procedures are updated regularly and applied consistently to all employees regardless of seniority.  In order for an employer to avoid the risks of inappropriate workplace behaviour, our labour department can be contacted to assist with an HR audit of your current policies and procedures and the drafting of any amendments thereto.  We look forward to being of assistance to you.