Labour Relations and Employment Equity Acts
Many people with disabilities are harassed, victimised and bullied in the workplace by other employees. The bullied victim has the right to be treated with dignity and respect in and out of the workplace. We explain the labour law and steps that job applicants and employees with disabilities can take against perpetrating employees, using the Labour Relations and Employment Equity Acts.
Harassment, victimisation and bullying in the workplace
What is workplace harassment?
The Employment Equity Act states that the “Harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination listed”. Alleged harassment falls under the same definition of “harassment” as the Equality Act.
Disability-related workplace harassment that impacts an applicant or employee with a disability, must be “unwanted conduct” in the form of an act or omission “which is persistent or serious” that “demeans, humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences”.
Examples of workplace harassment
• Unjustified exclusion from an event, opportunity or meeting.
• Unfair treatment or discrimination based on the disability.
• Targeted, unwarranted or unreasonable over-supervision or micro-management.
• Deliberate ‘managing out’ or abuse or misuse of a manager’s position or power.
• Misuse and abuse of performance or disciplinary process.
• Making adverse, unjustified observations or comments about job security.
• Intentional duty over-loading or forced longer working hours.
• Deliberate blocking of promotion and advancement.
• Deliberate withholding of training and development opportunities.
What is workplace bullying?
Workplace bullying follows the “harassment” definition. Disability-related examples include:
• The above listed examples of general harassment.
• Refusing to provide reasonable accommodation.
• Withdrawing reasonable accommodation already permitted.
• Threatening to breach confidentiality and make a disability diagnosis public.
• Intolerance of psychological, psychiatric, and medical diagnoses.
• Unwarranted perormance assessments or rewards due to a disability.
• Creating a physically or mentally unhealthy working environment.
What to do when you experience workplace harassment or bullying
Practical steps to take when confronted by harassment or bullying are to record all the incidents involved. Take notes and write down the details of what took place: who said or did what, the dates and times and the names of witnesses. Then – with your witness present – meet with the harasser and verbally engage with them to explain the problem. Let them know that the harassment was unacceptable, that it breached the law and that you will take it further if the harassment does not stop. Make it known that it is important to you that you receive an apology and then ask for one.
If this does not rectify the problem in the workplace, there are other avenues for the employee to use in order to address the issue. If the employee is a member of a trade union or an employee’s association, they should contact the shop steward. If the employee is not a member, their next step would be to contact the company’s Human Resources Manager or Supervisor. Subsequently, they could lodge a complaint using the complaints and grievances procedure. Management will then investigate the harassment complaint. Many are resolved early because the perpetrator knows their conduct was unacceptable. If not, a disciplinary inquiry is often held to hear both sides and if necessary identify appropriate disciplinary penalties for the harasser.
In a small business these options are often not available.The employee would then contact the CCMA or Bargaining Council, to lodge an unfair labour practice dispute against the harasser. To resolve the issues a conciliation meeting will take place. If this is unsuccessful, the dispute can be referred to arbitration.
In the next issue, we will cover people with disabilities’ rights to reasonable accommodation in the workplace and in society, as well as its benefits and how to ensure you get it.