Employer’s Obligations Regarding Workplace Mobbing – Better Safe than Sorry

20
Aug 2020

mobing na radnom mestu, mobing na poslu

Did you know that in Serbia, the first verdict for workplace mobbing was reached back in 2008? The harasser was sentenced to 4 months of jail, i.e., 2 years’ probation.

Although all types of workplace harassment have been prohibited for many years, in 2010, the conditions were created to adopt a separate law which would regulate the field of workplace harassment – mobbing, the Law on Prevention of Workplace Harassment was adopted (hereinafter: Law).

If workplace harassment happens at the employer’s premises, the employer can be held responsible for compensation of damages to the employee and is at risk of such proceeding affecting their reputation. Not any less significant is the employer’s misdemeanor liability and high fines. If workplace mobbing occurs between employees, even if the employer is not taking part in the mobbing, they will also be sued in the court proceeding.

Although in the media, the topic of mobbing is trending, unfortunately, there are many oversights that employers make regarding the proper compliance with the obligations prescribed by the law. In this blog, you can find the basic terms and procedures regarding workplace mobbing, as well as the basic obligations of employers and employees.

What Exactly is Workplace Mobbing?

We won’t start off this blog by writing down a number of legal definitions which would cause even greater confusion. Instead, we will list examples of actions and behaviors which qualify as workplace mobbing.

Insulting, cursing, making up, and spreading lies about personal and professional life are typical examples of workplace mobbing.

However, workplace mobbing is more often represented by passive behavior, such as avoiding the victim or excluding them from communication, isolating them, and ignoring them.

Whichever act of workplace mobbing is in question, the point is that the action is always directed towards humiliating and underestimating the victim.

How Does the Law Define Workplace Mobbing?

Mobing na radu, tužba za mobing

The conditions for a behavior to be classified as mobbing are:

  • repetitive behavior– a single action, according to the Serbian Law cannot be classified as mobbing; the case law takes a stance that mobbing represents systematic acting, which is not shorter than 6 months;
  • the goal of the behavior in question is to hurt the employee’s dignity, reputation, personal and professional integrity, health, or employee’s position;
  • behavior which 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 an employment agreement or other agreement.

The definition is quite broad because the intention was to include many actions and behaviors which could be qualified as mobbing, but the Law does not stop there, it presupposes that encouraging or leading to these kinds of behaviors qualifies as workplace harassment.

Mobbing VS Discrimination

Mobbing should be distinguished from discrimination at work or related to work. The two institutes are different in motives, actions, and legal regulations.

While personal animosity and hostility, as well as the 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 the consequences of mobbing and discrimination 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 led by their desire to achieve benefits at work (e.g. to reach a higher position on a hierarchy scale).

The Employer’s Obligations Regarding Mobbing

Sprečavanje zlostavljanja na radu, Zlostavljanje na radnom mestu

The basic employer’s obligation regarding mobbing is to create a safe and healthy working environment, without harassment.

This brings bigger responsibility to the employer since, besides the fact that the employer cannot perform workplace harassment, the employer is also responsible for any damage caused by an individual or employee responsible for workplace harassment. Of course, in case the employer compensates for the damage caused by the responsible individual or their employee, later on, the employer has the right to ask for compensation of paid damages.

Still, this can include many court proceedings which can last for many years, and create unnecessary expenses, and while the employer is trying to prove that they had nothing to do with the mobbing, the employer’s reputation may already be damaged. This is why prevention is key in order to avoid risking your reputation as well as the court’s expenses.

The Employer’s Obligation to Adopt Certain Acts

A preventive measure the employer should take regarding mobbing, as well as ensure that all necessary procedures are being adhered to, and avoid consequences, is to familiarize themselves with their legal obligations and to regulate their business.

The employer’s first obligation regarding mobbing is to notify each employee (in writing) on the prevention of workplace harassment before they enter the employment relationship. The notice has to include the rights, obligations, and responsibilities of the employee and employer regarding the prevention of workplace harassment. The notice also has to include definitions of basic terms, information that protection from harassment and sexual harassment is exercised at the employer and before the competent court, as well as what doesn’t qualify as workplace harassment. The case law does not consider periodical differences in opinion to be an example of workplace harassment.

As a consequence of inadequate legal counseling, many employers often omit to deliver this notice to each employee, or they provide a notice which does not include all elements necessary, which often leads to the employer’s misdemeanor liability, and fines.

Besides this mandatory act, each employer is obliged to provide their employees information on the individual for support, on individuals authorized for starting a proceeding for protection from harassment, on the individual to whom the request for protection from harassment is submitted, as well as the list of the employer’s mediators.

In order to regulate workplace mobbing properly, and to clearly and transparently explain it to employees, adopting a general policy – a Rulebook on protection from workplace harassment, is considered to be a good practice. Although adopting this Rulebook is optional, it can act as a preventive measure and the possibility of any oversights by the employer will be minimized.

The Employer’s Obligation Regarding the Process of Mediation

Mobing na poslu, Tužba za mobing, Tuzba za mobing,

The process for protection from workplace harassment at the employer, as a phase that precedes the court proceeding, is obligatory only if mobbing was performed by an employee or a group of employees.

Then, the victim of mobbing is addressing the individual who is the mobber, indirectly, with the aim to resolve the dispute amicably. The employee’s request is then forwarded to the employer.

The employer’s obligation is to offer mediation as a possibility to resolve the dispute. In order for the whole procedure to be implemented in accordance with the Law, it is best to provide clear guidelines and steps which all participants in the proceeding have to adhere to, by adopting a Rulebook on protection from workplace harassment. If there is no such Rulebook, you can easily overlook some of the key responsibilities.

A mediator should be a person of trust for both parties in the dispute – the mediator does not represent any of the parties, but mediates between them, with the aim of finding the best solution for both parties.

The mediator may suggest a possible way to resolve the dispute to the parties, but they have no power to force the parties to act in any way.

The process of mediation at the employer may be resolved by:

  • the parties concluding a written agreement – which includes measures directed towards stopping the behavior which represents harassment, i.e. excluding the possibility of continuing the harassment,
  • the mediator may decide that the process of mediation is ceased since further proceeding is not justified, or
  • a disputing party declaring that they are giving up a further proceeding.

It is particularly important to deliver the notification on a failed dispute regarding protection from workplace harassment to the employee since the properness and lawfulness of the performed procedure depend on this.

Regarding the mediation procedure, there is another responsibility of the employer, if the mediation procedure fails, and there are grounds to suspect that the harassment of an employee had indeed occurred. The employer is obliged to start e proceeding to determine the employee’s responsibility for irreverence of work discipline, i.e. violation of work obligation, which should be defined by an adequate employer’s policy.

The Employer’s Responsibility to Impose Urgent Measures

povreda dostojanstva radnika, strah na poslu, nasilje na poslu

Until the procedure for protection from workplace harassment is finalized, and in case the employee, by the department of occupational medicine’s opinion is at imminent danger to their health or life or at risk of irreparable harm, one of the following measures will be imposed upon the employee accused of harassment: transfer to another work environment, to the same or other jobs i.e. workplace, or away from work with a salary compensation.

Also, it is the employer’s obligation to notify and train their employees to recognize the cause, forms, and consequences of harassment.

What are the Mechanisms of Protection from Workplace Mobbing?

Which manner of protection from mobbing will exist depends on who is the mobber.

The Law states that a mobber can be an employer or a responsible individual, employee, or group of employees.

If the employer is the mobber, the victim can immediately start a court dispute regarding workplace harassment, i.e. they can file a lawsuit.

If the mobber is another employee, the victim of workplace harassment should firstly speak to the employer and start an internal protection procedure (an attempt at an amicable dispute resolution). Only after the internal procedure is over, a lawsuit can be filed.

It is crucial to mention that when an employee who claims to have suffered harassment and the individual who is the mobber are not in an employment relationship at the employer, the proceeding for protection from workplace harassment cannot be initiated, even if the employee claims that the listed actions which represent mobbing occurred while the parties had an employment relationship.

The Law on amicable employment dispute resolution foresees another mechanism of protection from workplace harassment, and that is a proceeding before an arbitrator of an Agency for an amicable resolution of employment disputes. The proceeding is initiated when the party who considers being a victim of harassment files a proposal to the Agency, and if the other party consents to the proceeding, the Agency gets involved and aims to reconcile the parties.

Workplace Mobbing Lawsuit

In a proceeding regarding protection from workplace harassment, before the court, the defendant is always the employer, no matter who harassed the employee in question.

During the court proceeding, it is determined whether there are actions that qualify as workplace harassment, whether those actions happen continuously and with a certain duration, and the employee should also clarify that workplace harassment had occurred. The burden of proof then passes onto the employer – the defendant, i.e. their task is to prove that behavior that could be qualified as workplace harassment did not occur.

The employee who considers that they have been exposed to harassment during the court proceeding can request not only proof that they have been harassed and a prohibition of the behavior which represents harassment, prohibition of further harassment i.e. repeating of harassment, but also execution of an action to remove the consequences of harassment as well as compensation of tangible and intangible damage. The last but not least, the employee may ask for publishing of the verdict which could cause damage to the employer’s reputation.

On the other hand, there are situations in practice where the employees who are not satisfied by working conditions or for some other reason of revolt, start an unjustified proceeding for protection from harassment against the employer – which is prohibited since misuse of the rights to protection from harassment is prohibited. The employer’s option in order to protect themselves is to firstly, explain to employees that misuse of protection from harassment is prohibited, and to foresee a mechanism for disciplinary responsibility of employees in case they misuse this right. In case an unjustified court proceeding is initiated against the employer, they can promptly react by starting a proceeding against such employees.

Consequences of Mobbing

It is unambiguous what consequences mobbing leaves to the victim’s mental health and overall health.

Mobbing is a social occurrence that unambiguously hits the employees the most.

However, the negative implications of mobbing on the employer’s business and the whole company are significant.

Studies of the International Employment Organization show that mobbing at a company can lower work performance up to 60%, and to increase expenses up to 180%.

This is why the prevention of mobbing at the workplace is crucial, in order to avoid negative consequences. The first step towards prevention is introducing appropriate employer’s policies, adequate mechanisms for the prevention of workplace harassment, and raising employees’ awareness through regular training.

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