Intimidation can be defined as a threat, either physical, verbal or through inference and suggestive actions that have the effect of making the person(s) to whom it is directed to fearful of the threats directed towards them.
The Employment Equity Act 55 of 1998 draft code of good practice on preventing and eliminating violence and harassment in the workplace, defines intimidation as the intentional behaviour that would cause a person of ordinary sensibilities to fear injury or harm. It is not necessary to prove that the behaviour was so violent as to cause mean terror or that the victim was frightened.
Intimidation is defined in the Intimidation Act 72 of 1982 as: –
- Any person who, without lawful reason and with intent to compel, or induce any person(s) to do or abstain from doing, to assume or abandon a particular standpoint.
- Assaults, injures or causes harm to person(s);
- In any manner threatens to kill, injure, or cause damage to person(s).
- Acts or conducts himself/herself in such a manner or utters or publishes such words that have the effect or reasonably expected to have the effect that the natural and probable consequences thereof would be that a person(s) perceiving the act, conduct utterance or publication –
- Fears for his/her safety, property, livelihood.
With the above theoretical background in mind, application can be applied to actual incidents where intimidation occurred in the workplace. For instance, in the case Matemane v Driscoll NO and Others (JR1690/13);  ZALCJHB 199, the Labour Court upheld the Arbitrator’s ruling that the dismissal of Warrant Officer Matemane for implicit threats against a senior officer to be substantively fair. This ruling shows that intimidating or threatening conduct is regarded as a serious form of misconduct, which may be in breach of the Intimidation Act. To this extent, dismissal is often considered reasonable should it be shown that an employee made intimidatory remarks, that the employee should have been able to reasonably foresee the meaning of the words and that the victim felt intimidated by his conduct.
In Adcock Ingram Critical Care v CCMA and others (JA41/00);  ZALAC 10, the Labour Appeal Court ruled in this instance that not only was the employee aware or reasonably aware of the meaning attached to his words, but also the context upon which it was used. The Court further held that it doesn’t need to be directed to any specific person to constitute a threat.
In the matter of NUMSA obo R. Ngobeni v Disa Motors case ref: MIDB 13350, evidence was led that the Applicant’s “voice was getting very loud, and his body language was very aggressive” and that “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, like 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.
In Mallen Muller v Anchor Foods (PTY)LTD WECT14535-20, a dismissal for intimidation of a co-worker by way of Whatsapp messaging was deemed substantively fair. The Applicant, in his testimony, tried to aver that the messages were not meant to be threats, but this was dismissed by the Commissioner, who found that a reasonable person would have construed the messages to be threats.
From the above cases, intimidation is clearly a serious offence. The degree to which it occurs and its effect on those affected by it would need to be examined on a case-by-case basis to determine whether dismissal in the circumstances would be appropriate or not.
Article by: Wesley Lazarus
Dispute Resolution Official – CEO George