031 765 3611 mat@fforman.co.za

Workplace bullying vs unfair labour practices: What’s the difference?

Sep 25, 2019 | Labour News, Training

Bullying as a tactic for most people is either confined to playgrounds where children hang out, or the internet where trolls sling all types of derogatory comments. But bullying is equally prevalent in the workplace with dire consequences for both victims and organisations. But discerning the difference between bullying antics and unfair labour practices is often difficult to do, says Advocate Tertius Wessels, Legal Director at Strata-g Labour Solutions.

“Looking at the labour dispute of Peter Moyo, Old Mutual’s embattled CEO. One can understand why some people have lashed out at Old Mutual, accusing it of employing bullying tactics, after the court found his previous dismissal to be unfair. Unfair labour practices are clearly defined and therefore, easier to challenge. But sometimes an employer is simply a biased manager; while this makes them a bad leader, it does not constitute him or her as a bully,” explains Wessels.

Definitions

The definition of bullying is repeated actions and practices that are directed to one or more workers, which are all unwanted by the victim, and may be done deliberately or unconsciously. However, these actions do cause humiliation, offence and distress, which ultimately may interfere with job performance and create an unpleasant working environment.

Unfair labour practices on the other hand are specifically defined in terms of the Labour Relations Act and generally relate to an unfair act or omission that arises between an employer and an employee.

Struggling to define which ambit bullying falls under legally is only one part of the problem. Even in organisations where processes to deal with bullying are in effect, the outcomes are not always favourable to the victims, says Wessels.

“According to findings by the Workplace Bullying Institute SA, where Human Resource (HR) intervened, 37% of those accused of bullying retaliated, while 31% of complainants lost their job. In 18% of cases, HR took no action and when it did, only 2% of cases reached a fair and just resolution; the remaining 12% of occurrences went unreported,” Wessels explains.

While “bullying” is yet to be included in labour legislation, recent cases in the CCMA and our Courts highlighted the zero-tolerance approach for bully behaviours such as hate speech and racism.

But even the law fraternity is susceptible to bullying.

Survey insights

A survey conducted by the International Bar Association revealed that bullying is prevalent in South African legal workplaces, with 73% of South African female respondents admitting to having experienced bullying and 42% of male respondents felt the same.

The effects of bullying are well documented, with the Trade Unions Congress reporting that nearly half (46%) of people say that bullying harms their performance at work, and the same amount believe it hurts their mental health. More than one in three (36%) people leave their job because of bullying, thereby disrupting career progression.

A University of the Free State study reported that the effects of persistent or intense bullying could sometimes amount to post-traumatic stress disorder.

Bullying can also affect a company’s bottom line with lower productivity, higher absenteeism and staff turnover but despite all of this, employers when dealing with bullying tend to focus more on the victim, rather than the perpetrator.

The Workplace Bullying Institute SA found that the top five reasons attributed to bullying eventually stopping are 37% of victims are often fired or discharged, 33% of them resign (constructive dismissal), and 17% of complainants are transferred to another department. But only 4% of bullies are punished, and 9% transferred out.

“Employers should offer life skills such as emotional intelligence, assertiveness and conflict handling. They should, in a clear, unambiguous language assure employees their organisation will not tolerate bullying. While it remains complex to differentiate between unfair labour practices, unfair discrimination and/or harassment, our courts have proved that as a country, we do not tolerate bully behaviour,” concludes Wessels.

B-BBEE CODES NEW RELEASES FROM DTI

Jun 6, 2019 | Training

31 May 2019, the DTI released, a new version of the Preferential Procurement, Enterprise – and Supplier Development element, Skills Development Element, General Principles, as well as updates on Interpretations and Definitions.

STATEMENT 400: THE GENERAL PRINCIPLES FOR MEASURING
ENTERPRISE AND SUPPLIER DEVELOPMENT

  • The total points for the Preferential Procurement increases from 25 to 27 points due to an increase in procurement from 51% Black Owned entities from 9 to 11 points.
  • The target for procurement from 51% Black Owned entities increases from 40% to 50%
  • Procurement from large (also referred to as ‘Generic’) entities that are 51% Black Owned based on the flow-through the principle, can be recognised as procurement under indicators for procurement from Exempt Micro Enterprises (EME) and Qualifying Small Enterprises (QSE) provided the Measured Entity procured from those suppliers when they were still qualifying as a 51% Black Owned EME or QSE, with a 5 year cap.
  • Enterprise and Supplier Development (“ESD”) towards large (also referred to as ‘Generic’) entities that are 51% Black Owned based on the flow-through principle, can be recognised as ESD beneficiaries provided the Measured Entity assisted the ESD beneficiary entity when they were still qualifying as a 51% Black Owned EME or QSE, with a 5 Year cap.
  • The Provisions of the Empowering Supplier status has been maintained in Statement 400, which could mean that it should also be implemented with this amended statement.

STATEMENT 300: THE GENERAL PRINCIPLES FOR MEASURING
SKILLS DEVELOPMENT

  • Spend on bursaries for black students attending higher Education Institutions has been introduced with a target of 2.5% leviable amount and 4 weighting points.
  • Weighting points for overall Skills Development expenses have been reduced from 8 to 6 points.
  • Category F & G no longer capped at 15% but at 25%, however, travel & accommodation remains capped at 15%.
  • The indicators for Employed & Unemployed learnerships have been combined.
  • The weighting points for Employed & Unemployed learnerships have been reduced from 8 to 6 points.
  • No double counting allowed between Skills Development Expenditure on Learning Programmes specified in the Learning Program Matrix for black people and Skills Development Expenditure on Bursaries for Black Students at Higher Education Institutions.
  • Stipends linked to bursary programs now a legitimate learning cost. This was previously limited to Cat B,C & D programs.
  • Definition for a bursary or scholarship scheme now specifically includes costs for funding for subsistence or accommodation during the period of study.
  • Training Manager’s salary cannot exceed more than 15% of the total value of Skills Development Expenditure.

STATEMENT 000
GENERAL PRINCIPLES AND THE GENERIC SCORECARD

  • Amendment to Code series 000, statement 000 GG. 36928, with Amendment code Series 000, statement 000 GG42496 for implementation within six months from date of gazette (i.e. six months from 31 May 2019).
  • Although not new in practice, it is now clear that a Start-up Enterprise is ordinarily regarded as an EME, unless tendering for a contract in excess of the threshold for EMEs, in which case the corresponding scorecard will apply.
  • Clarity on the use of the Flow Through Principle for elevation to Level 1 and 2 for black owned EMEs & QSEs now specifically included in the codes.
  • Principles for measuring joint ventures specifically included in the amended codes. The consolidated verification certificate will consolidate the verified compliance data of joint venture partners based on weighting in accordance with the joint venture agreement relevant to a specific joint venture.
  • The JV BBBEE certificate is valid for 12 Months and only applicable to a specific Project.

BROAD-BASED BLACK ECONOMIC EMPOWERMENT ACT SECTION 9 (1) CODES OF GOOD PRACTICE AS AMENDED SCHEDULE 1
INTERPRETATION AND DEFINITIONS

Ownership

  • The Net value date has been excluded in the new amendments, however, the definition for the current equity date has been included as follows: “the later occurring of the date of commencement of statement 100 and the date upon which the transaction undertaken by the Measured Entity in order to achieve black rights of ownership, became effective and unconditional;“

Skills Development

  • Definition for long term contract: A legal agreement between an individual and an entity that this individual would work for until his or her mandatory date of retirement.
  • Definition for Absorption amended : No more “proceeding with further education and training”, only a long-term contract of employment included. (now defined).
  • Company Limited by guarantee new definition: means a company limited by guarantee, as referred in the Companies Act, No. 71 of 2008;
  • Critical Skills new definition: “those skills identified as being critical relevant to the SETA.
  • Qualifying Enterprise and Supplier Development Contributions new definition: means a collective term describing Enterprise Development and Supplier Development Contributions targeting EME’s and QSE’s which are at least 51% black-owned or at least 51% black women-owned, black youth in rural, and underdeveloped areas in statement 400.

Maintaining Effective Industrial Relations in the Workplace

Sep 6, 2018 | Training

Mat Fforde of Fforman concluding a 2 day Practical Workshop on Maintaining Effective Industrial Relations in the Workplace:

  • Conducting an Investigation – ‘How to’ and the value of being thorough and discerning the facts.
  • Role of Initiator in an Enquiry – Procedural presentation of the case and evidence and questioning of relevant parties (employee/representative & witnesses).
  • Role of Chairperson in an Enquiry – Procedural elements and control of the hearing, understanding of all substantive facts and evidence presented by Initiator and defending employee, determining a Finding and appropriate Sanction.
  • A Initiators and Chairperson’s Pack had already been developed for My Gas, which delegates familiarized themselves with.
  • Scripted Disciplinary Enquiry ‘Role Play’ Exercise to conclude