18 October 2017

The Cambridge English Dictionary defines “Victimize” as intentionally treating someone in an unfair manner. As we are all very much aware in South Africa, unfair treatment can target race, sex, belief and any other number of grounds (as well as any arbitrary ground) according to section 6 of the amended Employment Equity Act 55 of 1998. But victimisation may also involve the spreading of malicious rumours, insulting or humiliating an employee, ensuring the employee is overloaded with work, constant exploitation of the employee or using obscene- or vulgar- or insulting language against an employee.

Section 186(e) of the Labour Relations Act 66 of 1995 considers a forced resignation to be a dismissal and, if the employee is able to prove he or she was victimised, the employee will have a solid basis for referring a constructive dismissal claim. In the case of Majatladi v Metropolitan Health Risk Management & Others (2013) 34 ILJ 3061 (LC), Majatladi claimed to have been constructively dismissed. She’d been told that it would not be in her interests to get into conflict with the company as doing so could affect her career, which would be unwise in such a small industry. The Court found that Majatladi had been intimidated on several occasions and that this indeed constituted constructive dismissal. She was awarded 6 months worth of salary as compensation.

As per Liana Meadon of FSB Business, 77.8% of South Africans reportedly experience some form of victimisation during their careers. Victimised employees are often found to have suffered a great deal and on a repeated- or ongoing basis. Victimized employees can find themselves subject to physical, mental and emotional abuse if employers are not vigilant or (worse) do not act to prevent victimization. This is an unenviable position, as claims for constructive dismissal are only the tip of the iceberg: a determined employee could drag a discrimination case into the Labour Court or even sue for damages in Civil Court.

In the case of Young v Coega Development Corporation (PTY) Ltd 2009 (6) SA 118 (ECP), Young was dismissed for “destroying the trust relationship”. The Court found that the dismissal amounted to victimisation because it came on the heels of Young reporting alleged wrongdoing by the CEO. Young was awarded reinstatement.

Employers should educate their employees and implement procedures to prevent workplace victimisation. The importance of complying with anti-discrimination statutes and of developing a work-culture of sensitivity and tolerance needs to be brought home to every employee and manager. Every company should implement an anti-victimisation policy and ensure it is properly explained during orientation. Immediate action should be taken against any employee who is suspected of breaking this policy.

Victimisation, whatever form it takes, should be seen as an unacceptable violation of the employee’s rights. In addition, it is an employee’s right to be treated with dignity and respect. Employers are legally bound to protect their employees from all kinds of harassment and failure to comply with this duty may result in the company being held directly liable under law.