The elements of a conflict interact like a system or machine where each part of the conflict interacts and reinforces other parts of the system. There are no quick fixes or impacts in most complex conflicts. Often, multiple parts of a system need to change before the system of conflict changes.
Lisa Schirch
Introduction
Workplace bullying, wrapped in indirect definitions and legal categories as it is, often escapes focused senior management attention, and yet is has all the potential to deliver incredibly harmful results to a business and the victim interests involved.
Workplace bullying, categorized and dealt with in our law as a species of harassment, is somewhat surprisingly more prevalent than other forms of this workplace scourge, such as sexual harassment. It is, as we will see, difficult to truly define (despite several efforts to do so), and it is even more difficult to combat and contain in the modern workplace. But we will also see that there are several workplace conflict strategies and best practices that are effective, even though they are not as yet widely integrated into the South African workplace environment.
To get a clear and helpful grasp of relevant workplace bullying statistics to guide us is difficult, with valuable workplace conflict resources such as the annual CCMA statistics aggregating such claims under harassment. Differing definitions, confidentiality, strategic claims and employer wariness contribute further to different perspectives. A rather comprehensive 2012 study by Cunniff and Mostert, in a study of different sectors and regions in the country, however indicates that 31,1% of the workforce polled has been bullied in the past. Male workers (contradicting results of research by Feijó et al that women are more prone to be bullied), younger employees, and black employees reported higher levels of bullying than other employees. While 15.7% of employees who were bullied, were bullied by co-workers, almost twice this percentage, namely 30.5% were bullied by their supervisors, confirming this trend in other countries.
With these statistics gathered before the 2022 Code, it would be surprising to see more recent exhaustive statistics differing much from the Cunniff study. Workplace bullying, in its most severe forms, can be an extremely destructive workplace conflict phenomenon, harming or destroying careers, and doing immense, often unnoticed harm to business interests. Despite this, these hidden icebergs are hardly ever discussed at boardroom level, and simply delegated to the ubiquitous catch-all solution called HR. It is observable when working with different workplaces how only the most visible, often publicly displayed, forms of bullying get to be dealt with by management, often when it is a case of damage control and not a proactive management of this conflict cause. This article sets out to equip modern employers with the tools to be more proactive, and more effective in understanding, monitoring, managing and minimizing such conduct.
A codified remedy
As a simplified point of departure we can make use of the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, published on March 18, 2022 as Government Notice R.1890, and available online at Scanned Document
The 2022 Code seeks to replace and expand on the 2005 Code on sexual harassment, and it partially succeeds in this aim. Bullying, including cyber-bullying, is now explicitly covered as a form of harassment, and harassment in turn is again defined as: (a) Unwanted conduct that impairs the dignity of the employee, or creates a hostile, intimidating of offensive environment;
(b) Is related to a prohibited ground as understood in s6(1) of the Employment Equity Act (eg race, gender, sexual orientation, age, disability or an arbitrary ground);
(c) conduct that may involve the abuse of power, threats, shaming, exclusion, sabotage of work, spreading of rumours, passive-aggressive behaviour, mobbing, or other actions that harm the well-being of the recipient, or create barriers to equality.
The scope and application of the Code is extremely wide, and includes remote work events, job applicants, clients and other surprising inclusions. It is consistent with the approach followed in PEPUDA cases.
Claimants in the South African workplace may have claims, or be forced to, also consider casting these claims in terms of other legislation or frameworks, such as the LRA, EEA, various health and safety provisions, and even the common law. We will be able to convey the most important aspects of the debate to management by largely making use of the Code, however, and the design of policies can simply incorporate such wider approaches into its final framework.
A study of the growing body of South African case law on the subject however continues to show disagreement and debate on what that term “bullying” all includes, and what should be covered by it. This is of obvious practical importance to the employer wanting to identify, manage and minimize such conduct. Let’s have a look at a few additional ideas around the concept to sharpen our understanding of it.
Defining and understanding the term “bullying”
For all the Code’s abovementioned efforts to explain what bullying entails, it raises more questions than it answers. In fairness, human conflict teaches us that concepts such as these have a seemingly infinite number of possible applications, and it would in any event not be wise to circumscribe the offence in too limited a fashion. Nevertheless, as we will see later on, with that flexibility comes a set of questions and operational challenges.
The attempted Code definitions we considered above also do not really take clarity much further, especially in contested settings. I particularly like the definition offered by Stellenbosch University Emeritus professor Karin Calitz where she suggests the definition of bullying used in British Columbia:
Bullying means conduct in the workplace by one or more persons which demeans, humiliates, lowers self-confidence and which would be so perceived by a reasonable person in the same circumstances, or which creates a hostile or intimidating environment, or poses a danger to the health and safety of a person, but excludes any reasonable action taken by an employer relating to the management of the workplace
(See article and discussion in reference section below, number 2)
If this needs any additional clarification, Calitz assists us further by using the synthesis of 30 global legal definitions as used by Brandeis University in Massachusetts, where the following very practical definition is established:
Workplace bullying is a persistent pattern of unwelcome conduct that a reasonable person in the same circumstances would consider unreasonable. It includes behavior that is belittling, intimidating, humiliating, offending, or disempowering. The behavior must have the cumulative purpose or effect of harming an employee's health, reputation, career success, or ability to perform.
Noticeably, both of these definitions work with an objective standard. We will return to the importance of this later on.
The employer’s codified obligations
While people of good will may debate the boundaries of what qualifies as bullying, once conduct is accepted as bullying behaviour, the 2022 Code is helpful and clear on the employer’s obligations in combating workplace bullying effectively. Simply put, a zero-tolerance approach is required.
The employer’s more specific obligations include the consultation on and development of a harassment policy, to provide training and awareness, to investigate complaints promptly and fairly, to take reasonable steps to prevent harassment, and to offer support, such as counselling, to victims. This, as we will see below, should really be expanded beyond a minimal compliance exercise, especially given the joint benefits of effective workplace conflict management to the employer and employees.
To act as an incentive to compliance with these requirements, the employer can now be held vicariously liable for workplace bullying in terms of s60 of the Employment Equity Act. While some employers correctly point out that the Code, strictly speaking, is a guidance document and not binding legislation, it remains highly persuasive in our courts and dispute resolution forums such as the CCMA. While bullying not so linked, as the Code provides in subsection (b) above, to a prohibited or arbitrary ground may be addressed by a victim under the LRA, health and safety regulations or even arguably under common law, I would suggest that the Code provides a sufficient framework for alleged offences and workplace conflict to be addressed under the Code.
As applied case law however shows, these definitions and applications can become very complex in practice, and the employer is well-advised to take care in drafting its policies and procedures, and to ensure sufficient, and ongoing, training for its involved personnel.
Ten workplace conflict strategies for bullying
When we are comfortable with the above foundational work, we need to of course give practical effect to this in the workplace. Approaching this important challenge as one of process, we should consider and integrate the following ideas, born from a collaboration of applied employment law and workplace conflict best practices, into our solutions.
1. Study the risks, and integrate solutions into the workplace systems, people and processes
Even a cursory glance at case law, various proposed sanctions, or some of the horror stories in the media, should inspire us to study this conflict cause properly, and to weave that understanding and our operational goals with it into our policies, processes, and the transferred skills of our involved management members. This should be an important shift in senior management thinking, along with other forms of workplace conflict, and a tailor-made, industry and business-specific end-product should reflect the understanding that this is not a task for ChatGPT or Google.
2. Ensure that involved staff are properly trained on an ongoing basis
Getting the application of workplace bullying wrong can have disastrous consequences, as far as wasted time, legal costs and brand damage is concerned. Too often senior management and / or HR and internal legal departments accept the mission as having been accomplished when a policy of sorts is in place. The specifics of most workplace bullying scenarios make for good media copy, and a fully qualified, integrated in-house solution to the problem, from start to finish, is the responsible management goal. Initial training, of one or more selected staff members, can be focused on a comprehensive skills upgrade, with regular updates and focused training at least once a year.
3. This is not HR
It is a crucial South African management challenge, in general and with regard to workplace bullying, to stop viewing workplace conflict as a traditional HR function. The modern workplace demands conflict competency from senior management and leaders far beyond the traditional HR field. Traditional HR is well-positioned to assimilate the new levels of skill required, and to conduct the day-to-day operational implementation thereof, but the content and application of workplace conflict knowledge and skill should extend into other levels of senior management. Traditional HR does not have the conceptual or content knowledge and available strategic and tactical benefits that can only be accessed by rebuilding existing systems to reflect a deep understanding and application of workplace conflict best practices. The application of employment and related law is a necessary requirement, but this should also be components of the larger understanding, acceptance and integration of workplace conflict best practices. The very limited, and often in themselves harmful processes and sanctions of traditional HR processes simply exacerbate an already complex situation.
4. Prevention is better, faster and less expensive than the cure Establishing, and then conveying, an increased capacity and skill-level of workplace conflict in general, and workplace bullying in particular, has at least three immediate benefits. Firstly, we must accept that some workplace bullies did not have that well-formed an understanding of their conduct as being that of bullying. Workshops, informal discussions, company literature and so on can all spread the simple message of what bullying is, how absolutely unacceptable it is, and the possible consequences of such behaviour. Secondly, this visible display of such knowledge by the employer act as a deterrent against such behaviour. Thirdly, the existence of a workplace culture where such conduct is openly discussed and condemned provides the employer with visible credibility when such events are investigated and judged in public forums.
5. Bullying is often a symptom, not a cause
Conflict studies show that workplace bullying is often enabled by indecisive policies or confusing messaging from management, both insofar as the content and the consequences of this offence is concerned. We have seen earlier in our discussion how the very understanding of what constitutes workplace bullying can be contentious, and clarity of leadership and of enforcement must be maintained. Unexamined examples in senior management, inconsistent application or sanction, power silos or a conducive workplace culture can add to serious and preventable employer risks, and should be patiently excised.
6. Pressure valves
Bullying often starts in small, apparently meaningless ways. The conscious bully is emboldened by an absence of negative consequences, and the incidental bully is assured that his conduct is acceptable by that absence. Employer policies and procedures should contain skilful mechanisms where such conduct could be addressed very early on, primarily as clarification exercises and red flag indicators, without it being elevated to formal disciplinary process status. Employees should be able to discreetly and confidentially enquire about, or report, such conduct early on. A skilled level of workplace mediation is a wonderful mechanism for early detection and management of these events, and implementation thereof should be considered.
7. Distinguish between criticism, debate and bullying
Modern workplaces need to operate optimally, in increasingly competitive commercial environments. The last few years of global workplace conflict, especially in the US educational environment, have increasingly shown us the harm that can result, often unintentionally, of seeking to prevent personal offence being taken by shutting down and even penalizing the healthy and constructive criticism and robust debate that is so essential in the workplace. It is management’s responsibility to draw clear lines on where those fences run, as this impacts directly on the workplace environment, the creation of spaces where debate and difficult conversations are encouraged, but where actual workplace bullying is also discouraged and managed. We will return to this potentially problematic aspect of workplace conflict below.
8. Enable employees
One of the most effective and constructive methods that I have encouraged workplaces dealing with this conduct to integrate into their systems and processes is the simple enabling of employees, on a voluntary basis, to be able to deal with basic levels of workplace bullying themselves. This may come across as the employer seeking to evade responsibility, but not if this is messaged effectively. There is absolutely nothing wrong with employers, through short workshops say on an annual basis, teaching willing employees how to employ effective conflict skills in defusing or managing minor incidents of workplace bullying themselves. By analogy, we expect the police to keep us safe from harm, but we improve our odds by having a legal firearm, or teaching ourselves self-defence techniques. The responsibility, legally and morally, remains that of the employer, but an extra level of basic conflict competency can actually reduce incidents of actual events, and the reporting thereof. Such training of course also improves the company culture around such conduct.
9. Remove drivers of and incentives for bullying
Traditional HR processes invariably reduce workplace bullying to breaches of rules and cookie-cutter processes, leading to generic sanctions. This leads to a variety of poor conflict outcomes, such as cyclical repeat offences, resentment, staff turnover, a loss of trust in processes and people, reduced productivity and team performance, increased risk and cost, wasted time and many more. While it is not the employer’s responsibility to delve into the psychological causes of bullying behaviour, there are a few standard workplace practices that can cause, perpetuate or exacerbate such conduct. Workplace environments demanding high and time-linked performance often lead specific individuals to regard bullying as an acceptable practice to get results, unfair application of rewards or sanctions cause employees to give up on fairness and this leads to bullying behaviour, and an absence of being able to raise perceived injustices may lead to employees taking their views of the law into their own hands and resulting in workplace bullying. We need to note that a formal grievance procedure does not help prevent this, if that process in itself, or the managing thereof, is regarded as unfair or biased. Properly conflict competent staff responsible for inter alia workplace bullying management, be that HR or someone else, should be trained in the more effective, more sustainable methods available, some of which we have dealt with earlier.
10. Integrate cultural and other forms diversity into your workplace conflict system
The identification of bullying behaviour is, as we have seen, often a part of the challenge. These blurred lines often become even more complex and capable of misunderstanding and poor conflict outcomes when they play out in a workplace environment where diversity prevails, and the more so when this is not completely integrated and managed according to best practices. Cultural, generational and various other identity markers can create serious workplace conflicts, of which bullying and the accusation of bullying is a prevalent example. Different expectations as to everyday workplace events such as precision, time management, methods of address, what constitutes respect and recognition of dignity etc. can all lead to the experience of bullying, whether such perception is justified or not, and very soon that workplace can be on the receiving end of a range of interlinked workplace conflict events that become more difficult to assess, manage or eradicate. These triggers and solutions should all form part of the modern workplace’s policies, processes and training of involved personnel and senior management. Policies and their everyday running should not be a reliance on outdated policies, HR consultants’ advice or an AI-generated concoction, but an industry-specific workplace conflict system designed by the dispute system design (DSD) methods applicable to the business itself.
Boundaries of abuse
In applying conflict competent leadership to workplace bullying, South African practice, and even case law, often still far too rooted in outdated workplace conflict philosophies and procedures, often lose sight of a modern workplace conflict phenomenon that I suggest urgently needs further study, debate and integration into workplace conflict systems, and that is the abuse of existing workplace systems regarding bullying. In short, this occurs where policies and procedures designed to protect legitimate victims from workplace bullying get weaponised as mechanisms to harass and bully innocent victims, all under the guise of legitimately using those provisions.
Conflict studies have picked up on this troubling development and possibility, so much so that a term for such abusers have already been coined. Workplace conflict researchers Bradley Campbell and Jason Manning provides the following troubling summary of some of the developing work:
The recent term crybully, an amalgam of crybaby and bully, points to the bullying potential of claims of victimhood. Roger Kimball, a longtime critic of the campus left, says crybullies are “a new academic phenomenon, at once tender and vicious,” that arises from rhetoric about microaggressions (Kimball 2015). The English writer Julie Burchill describes crybullies as “a hideous hybrid of victim and victor, weeper and walloper.” She says the crybully “always explains to the point of demanding that one agree with them and always complains to the point of insisting that one is persecuting them” (Burchill 2015). Lukianoff and Haidt’s (2015) concept of vindictive protectiveness is similar in that it points not only to the protectiveness of the microaggression program, as it seeks to shield people “from words and ideas that make some uncomfortable,” but also to the vindictiveness, as it “seeks to punish anyone who interferes with that aim, even accidentally.”
(From Campbell and Manning’s excellent book The Rise of Victimhood Culture: Microaggressions, Safe Spaces, and the New Culture Wars, pp. 44-45, Springer International Publishing)
The problems start with our earlier recognition of the difficulty in establishing whether workplace conduct in any given scenario in fact constitutes bullying. If an employee is falsely accused of being guilty of bullying, the system designed to protect against bullying in itself become a tool that enables bullying, this time of an unintended victim.
The legitimate impulse to rid the workplace of bullying, and the stigmas associated with bullies, all can end up being aimed at the wrong target, with disastrous effect. This can happen by cynical abuse of such system by rivals in the workplace, or the well-intentioned but ignorant application of such a system by an employer, to name but two examples.
We can derive some assistance in preventing this serious form of injustice by making use of the objective test for bullying that we studied earlier on, and hopefully in that process negate purely subjective allegations of bullying from becoming destructive workplace manipulation. We can reinforce a robust and realistic workplace environment that discourages bullying but does not, in that process, discourage healthy and necessary debate and disagreement, by taking a comparative approach to case law.
We can with some benefit start with the approach taken in the US case of Oncale v Sundowner Offshore Services,Inc, where the US Supreme Court stated that federal employment discrimination laws are not intended to create a general civility code for the American workplace. (Oncale v Sundowner Offshore Services, Inc 523 US 75 (1998) 80.) This realistic, and very necessary approach, is followed by our own case law. We have seen how the vagueness and difference of opinion on definitions and practical boundaries can lead to difficulties in applying this developed legislation in the real world, with s60 of the EEA or the Code itself proving ample examples of such difficulties.
Our Labour Appeal Court however builds on our suggested foundation by demanding objectivity and a rational, reasonable person approach to assessing and identifying alleged incidents of workplace bullying, especially clearly stated in the following passage:
There is a burden placed upon the appellant to show, on a balance of probabilities, that the conduct alleged by her was not rational, that it amounts to discrimination and that the discriminatory practice was unfair. An allegation of harassment, even if indeed it can be shown to exist on its own and of itself, cannot and does not meet the requirements as set out in s 6(3) read together with s 11 of the EEA. More is required before an employer such as the first respondent can be held liable in terms of the EEA, where, as in the case brought by appellant, that is based on 'an arbitrary ground'. So much is clear from the wording of s 11(2) of the EEA.
(Labour Appeal Court in Samka v Shoprite Checkers 2020 41 ILJ 1945 (LAC) para 23.)
This burden of the onus to prove that rests with the claimant is repeated by the Appeal Court in par. 26 of that judgment. If any further confirmation of both the danger of misidentifying workplace bullying, or the objective, rational test to be used in managing such complaints, is needed, we find it in cases supporting the Samka case, such as Private Sector Workers Trade Union on behalf of Private Sector Workers Trade Union on behalf of Opperman and Gerrie Ebersohn Attorneys 2019 40 ILJ 1159 (CCMA).
The various legislative and other provisions dealing with workplace bullying is a crucial part of our workplace conflict protections and mechanisms, but its lacunae and challenges in practical application also makes it a tool capable of misuse, abuse and manipulation, either by malicious design or by innocent misapplication. The modern employer should guard against such abuse, as it could of course bring the same negative workplace conflict outcomes to bear as the more conventional cases may indicate. Misapplying such provisions is as bad as not applying it.
Conclusion
We have briefly touched on some of the very practical and real challenges, both conceptually and operationally, facing the South African employer in the application and prevention of workplace bullying. It is a surprisingly sophisticated area of workplace conflict, requiring a nuanced and focused approach by management, at least in the design and implementation stages of the integration of these strategies. The 2025 draft amendments to the LRA do not take the definition and application debate any further, so the abovementioned remedies, specifically an upgraded workplace conflict focus, proper training of selected management and staff, and then the objective tests discussed, together with the ten practical strategies abovementioned would be the correct and prudent way to approach this important form of workplace conflict.
Summary of main sources, references and suggested reading
1. An excellent study on workplace bullying in the SA legal profession (and beyond), at Workplace Bullying in the Legal Profession | South African Law Journal
2. Prof Karin Calitz has an informative article on the shortcomings of protective frameworks against bullying at View of Bullying in the Workplace: The Plight of South African Employees
3. Chapter 14 of my book Dangerous Magic: Essays on Conflict Resolution in South Africa (available through Amazon or Paradigm Media) has a dedicated section on how employees can deal with bullies in the workplace.
4. My article at https://www.conflict-conversations.co.za/conversations/rethinking-workplace-bullying-refocusing-on-effective-solutions sets out more summarized strategies for management and employees, as well as the union perspective.
5. For articles dealing with the conflict strategies and tactics discussed, see our blog index at Conflict Conversations
(Andre Vlok can be contacted at andre@conflict1.co.za for any further information.)
(c) Andre Vlok
June 2026
* Author’s note on the use of artificial intelligence in writing this article
I learned to draft, argue and write in the hard school of litigation. I enjoy and value the very human process of creating ideas, of testing my own knowledge and thoughts. It is a process that I need, for answering some of my professional and even personal questions, it is cathartic and inspiring. Other than the most basic research assistance I do not use any AI in the creation of my written work, this article included. It is a matter of pride, of preference, and of mental health. Whether that is a wise choice, I will leave to the reader to decide.