Intimidation can be defined as making one fearful or to put fear into a person and has been found to include things such as verbal threats and aggressive and threatening body language. Proof of actual fear is not required in order to establish intimidation as intimidation may be inferred from one’s words or conduct.
In the matter of NUMSA obo R. Ngobeni v Disa Motors / MIDB 13350, evidence was lead that the Applicant’s ‘voice was getting very loud, and his body language was very aggressive’ and ‘the Applicant then became angrier and pointed a finger at him and said the words “next time you won’t be so lucky”’. The Commissioner found that ‘intimidation is an extremely serious offence, similar to assault, as it carries with it the implicit threat of assault’ and ruled that the Applicant’s dismissal was substantively fair, and his claim was dismissed.
Should an incident of intimidation occur in the workplace, an employee who alleges workplace intimidation should file a formal grievance and inform the employer of the incident and the intimidation. This places an onus on an employer to investigate the allegations further and to also take the necessary disciplinary action against the harasser as it is a violation of the human rights of the employee as well as a violation of the employee’s right to be treated with dignity and respect.
An employer who has been provided with a grievance in respect of intimidation has a duty to protect their employees from harassment as opposed to subjecting employees to harassment.
Should an employer place the harasser in a disciplinary hearing and find said employee guilty of the offence of intimidation based on the evidence submitted and dismiss the employee, the harasser may still refer their dispute to the CCMA. The employer will then be required to prove, at Arbitration, that the dismissal was procedurally and substantively fair.
There are far greater risks for an employer if they fail to take action on the reported allegations as failing to protect an employee’s rights can prove to be very costly as an employee who has not had their grievances dealt with in the correct manner can also refer their matter to the CCMA.
The risk that an employer faces in this situation is that if it is proven that the employer failed to take action based on the grievance, an award of compensation may be awarded in favour of the employee. This could easily be avoided if the employer takes notice of the grievances and takes action in terms of the employee’s complaints.
Employers are therefore urged to contact their nearest CEO Office and/or labour consultants before making any decisions involving incidents of intimidation.
Article by: James Guthrie-Strachan
Dispute Resolution Official – Durban