Mobbing – Get Informed Before it’s Late !

20
Sep 2017

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What is mobbing?

If we start from legal definitions, the International Labor Organization defines workplace harassment as a type of a psychological abuse at work and related to work, or offensive behavior in the form of punishment, cruel, malicious or degrading treatment with the intention of undermining an individual or a group of employees.

OK, but that sounds far too complicated. What’s the bottom line? Bottom line, mobbing on behalf of the employer or another employee towards you is a type of behavior that is directed toward humiliating or belittling you.

A typical example of mobbing is the “empty table” mobbing. This is a type of situation where mobbing victims are not being given work tasks or are being denied resources necessary to work, which makes their stay at the workplace completely pointless.

Nevertheless, there is the opposite case of mobbing – the “full table mobbing“. It is when a victim is overwhelmed with work tasks, short-term appointments, forced to perform tasks that impair their health, are not allowed annual leaves, daily breaks during work, free days, and the like.

Of course, there are other examples of behaviors that also represent work harassment besides empty and full-time mobbing, but the common denominator must always be their basic characteristic – humiliation, and belittling of an individual or a group of employees.

How does the Law define mobbing?

The conditions for a behavior to be classified as mobbing in the sense of the Law on Prevention of Abuse at Work are:

  • repetitive behavior – keep in mind that behavior towards an employee can be active or passive;
  • the goal of the behavior in question is to hurt the employee’s dignity – this includes violation of reputation, personal and professional integrity and health;
  • behavior causes fear or creates a hostile or degrading environment – this includes deteriorating work conditions or getting employees to isolate themselves, or suggest that they terminate their employment on their own initiative or cancel a labor contract or other contract.

The law defines mobbing broadly with a large number of actions that are set up alternatively (e.g. it is enough to prove fear OR offensive environment). This means that a large number of behaviors can be considered mobbing. However, all listed conditions have to be met in order for this to be qualified as work harassment.

When it comes to the first condition, this definition has been criticized by the professional public since it raises the question of what happens with a one-time action that creates lasting consequences. For example, the solution by which the employee moves into a work environment that does not meet the basic hygiene standards would not meet the recurrence requirement according to the provision of the Act, and this action, motivated by the intent to punish, belittle or humiliate, undoubtedly constitutes abuse in terms of other elements of the definition of work harassment. [2]

Caution! Mobbing ≠ Discrimination

Mobbing should be distinguished from discrimination at work or related to work. Two institutes are different in motives, actions and in legal regulation. While personal animosity and hostility, as well as possibility to achieve personal benefits, may be motives for a mobber, the motive for discrimination is always some personal characteristic of the victim either by birth (gender, skin color, nationality, etc.) or during their life (political, syndical, religious views, etc.).

It appears that these two legal concepts may overlap to some extent, especially since consequences could be almost the same. For example, harm to dignity, reputation, personal and professional integrity, health and position of an employee could be the consequence of both mobbing and discrimination. However, one could distinguish between these concepts by testing what are the motives of a discriminator versus the motives of a mobber. Discriminators tend to undermine employees based on their personal animosity towards a certain personal characteristic (for example, because of their political views), while a mobber is usually lead by his desire to achieve benefits at work (e.g. to reach a higher position in a hierarchy scale).

How to protect yourself against mobbing?

There are a few mechanisms for protection against mobbing. Which procedure would be applicable depends on who is a potential harasser. According to Article 6 (2) of the Law, a harasser could be an employer who is a natural person, an authorized person in a legal person as an employer, employee or a group of employees.

If a harasser is an employer, the victim may file a lawsuit before the court of law (please skip this paragraph and go immediately to the next one).

If a harasser is another employee or a group of employees, the victim of mobbing should, first of all, initiate internal procedure before the employer (mandatory alternative dispute resolution/attempt to amicable dispute resolution). If this procedure turns to be unsuccessful, the victim could file a lawsuit against a mobber before the court of law.

What is alternative dispute resolution (mediation) ?

First of all, the victim of mobbing sends a request to the employer in which he/she is referring to the mobber as another employee or a group of employees, with a suggestion to resolve the dispute amicably.

This is followed by mediation proposal as a way to resolve the dispute, which needs to be accepted by the employer and which is followed by the selection of a mediator. Each of the activities should be done within 3 days as of the day of the receipt of the request by the employer.

A mediator should be a person of trust for both parties in the dispute. However, this option has been criticized in the literature. Namely, mediator mostly would not be the person with legal education or practicing the law, neither the person educated to lead the mediation proceedings in the most efficient way. Even if legal education is not an obligatory condition for a person to be a (qualified) mediator, this is a specific procedure which does not involve a regular confrontation between the parties in a dispute, but a specific confrontation between the victim of mobbing with his mobber. (3) At least, the legislation is wrong to prescribe this method of dispute resolution to be mandatory.

Mediation lasts for eight days from the day of the election of a mediator. These proceedings can be prolonged due to justified reasons and could last for a period of 30 days as of the date of the election of the mediator.

The mediator can propose their proposal of dispute resolution to the parties, but it has no power to force the parties to act in any way.

A party can initiate proceedings before the employer within six months from the day the mobbing has occurred, i.e. from the day when the last action which represents mobbing has happened.

Besides a lot of advantages and rising popularity in practice, theoreticians are skeptical about mediation in this kind of disputes. This is mostly because a mobber usually would not want to voluntarily regret or accept that his behavior represented mobbing. It is difficult to believe that mediation proceedings could be completed in a victim’s interest, especially since a mobber could be a person with a dominant position in comparison to the mediator, e.g. set higher in a hierarchy scale.

Who can initiate legal proceedings and against whom?

A person who considers themselves a victim of mobbing could sue the harasser before the court. The following persons can be labeled as potential harassers: employer as a natural person, an authorized person in a legal person as an employer, another employee or a group of employees. Victim of mobbing can be only an employee who works or who is engaged in another way by an employer.

Although this solution sounds logical, there is a danger that the Law cannot be applied in many situations in practice. For example, if a firm has concluded a cleaning contract with another firm which is specialized in that field, a charwoman who is mobbed by employees of the firm where she cleans could not be protected according to the Law; couriers of post express would be faced with the same problem. An employee who is mobbed cannot sue an employer of a mobber because he is not his own employer, but he cannot sue his own employer either because he does not have any kind of control over a mobber. (4)

Lawsuit for the protection against mobbing

An employee who considers themselves a victim of mobbing by their employer can file a suit for mobbing before the court of law which has jurisdiction for such suits within six months as of the day the last action that represents mobbing occurred.

The deadline for filing a suit for mobbing, in case it is preceded by an attempt of amicable dispute settlement through mediation, is 15 days as of the day of delivery of a mediation decision which the employee is not pleased with.On the other hand, general labor dispute for the protection of individual rights of an employee can be initiated within sixty days from the date of receiving the decision.
It is crucial to distinguish procedure for protection against mobbing from the general labor dispute since the object of the former cannot be the impeachment of the legality of employer’s decision on rights, obligations, and responsibilities related to work. It is often the case that the employee is subjected to mobbing by this employer’s decision if the condition of the repetition of the act of mobbing is fulfilled. That means that the victim of mobbing will have to seek help in general labor dispute, and in that case, there is a difference in terms of the deadline for proceedings’ initiation and which court has jurisdiction.

High courts have jurisdiction over procedures for protection against mobbing, while basic courts have jurisdiction over general labor disputes.

Mobbing – the courts’ position?Despite acknowledging that the urgency of proceedings is a main principle of the mobbing dispute, in practice, the proceedings may take several years, so the quality and the efficiency of the provision are questionable. Therefore, it is crucial to become familiar with possible ways to protect yourself as a victim of mobbing during the proceedings before the employer, as well as during the court proceedings.
Namely, if an employee may suffer unrecoverable harm and if due to these activities are their health and life endangered (confirmed with proper medical documentation) the employer has to undertake one of the following measures:

  • To move a mobber in another working environment
  • To remove him from work, with reimbursement of salary.

Morevoer, the employee who is the victim of mobbing has the right to refuse to work if the employer does not accept any of the mentioned measures. During this period, he is entitled to salary reimbursement in the amount of the average salary which the employee earned in the last three months preceding the day the victimized employee stopped working.

There is also a possibility to determine protective measures during the proceedings before the court, on the party’s initiative or ex officio. The Law provides the following measures:

  • prohibition of rapprochement
  • prohibition of entry to the employee’s workplace
  • other measures: obligation to return the employee to work or an obligation to pay salary reimbursement to the employee during the proceedings.

No separate appeal is allowed against the decision to apply protective measures.

The Republic Agency for Peaceful Settlement of Labor Disputes

It is important to pay attention to a possibility to initiate proceedings for protection against mobbing before the Republic Agency for Peaceful Settlement of Labor Disputes (hereinafter: “the Agency”). Even though mobbing is one of the most common subjects of proceedings before the Agency, almost 70% of cases result with the conclusion that mobbing was not present, but some other type of violation of employees’ rights related to work. Mobbing was established in 30% of all cases, whereas 50% of the cases concerned the violation of other employment rights, and 20% were suspected abuse of the right to protection (according to the statistics from the Agency’s official website).

For the initiation of the proceedings, it is necessary to have the employer’s permission, which was present in only 20% of the cases, according to the Agency’s statistics, but the situation is the same in the other labor cases, as well.

Conclusion

By enacting the Law on Prevention of Harassment at Workplace in Serbia, legislator has shown an unambiguous intent to acknowledge the deserved importance of the mobbing, to distinguish it from discrimination – a similar term often mixed in practice, and finally, to provide protection to the employee, who is usually a weaker party in a working related relations. However, if an unqualified person leads some of the phases during the whole process of protection, the real impact of the provisions of the Law is uncertain. Contradictory and contrary provisions also make the quality of the Law questionable. On the other hand, there are possibilities to protect your rights in front of alternative authorities and to engage lawyer specialized in the field of labor law, which are certainly worthy of praise and which all speak in favor of the fact that the employee will really be able to protect his guaranteed rights against mobbing.

1. Christina Wieser, Work-related violence and its integration into existing surveys, ILO Department of Statistics, page 14.
2. Commentary – Law instructor 2012/25.
3. Ibid.
4. Ibid.

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