Workplace Harassment: How to Recognize and Report It

Although a very significant and sensitive topic, the prevention of mobbing or, more precisely, abuse at work, has only become the subject of concern for the general public in Serbia after several occurrences in this respect became viral in the past year. The issue of abuse at work is regulated by:

1. The Law on the Prevention of Abuse at Work (“Official Gazette of RS” No. 36/10), (“Law”)
2. The Rulebook of the rules of conduct for employers and employees concerning prevention and protection from harassment at work (“Official Gazette of RS“ No. 62/2010)
3. The Labor Law

In defining abuse at work, the Law refers to the following categories:

• Employer;
• Employee;
• State officials;
• Persons engaged in work without an employment contract such as:
  • casual employees;
  • commission and piece-rate employees;
  • employees on additional contract;
  • apprentices and trainees;
  • volunteers;
  • any other person who participates at work in some other way.

The role of the abuser can be played by one of the following persons:

• An employer – as an individual;
• A person in charge at work – director;
• An employee or a group of employees.

The Law regulates the prohibition of abuse at work and related to work, where the abuse is defined as any active or passive behavior repeatedly directed towards an employee or a group of employees of an employer. The conditions for a behavior to be classified as mobbing in the sense of the Law are:

• Repetitive behavior – which can be either active or passive. A single act of bad behavior towards a coworker is not considered to be mobbing, i.e. abuse at work;
• Behavior aimed at hurting the employee’s dignity – which includes the violation of his reputation, either professional or personal, and his integrity and health;
• Behavior that can cause fear or create a hostile or degrading environment – which includes poor working conditions or isolation from the colleagues and normal working environment. The ultimate goal of harassment in the workplace, i.e. mobbing, is to bring the employee into a situation where he/she wants to terminate the employment contract.

The most common type of employee abuse is active behavior of the abuser against the abused employee: gossip, slander and insults, unfounded work-related criticism, hiding important information from the victim, suddenly interrupting the conversation when he/she enters the room, ignoring the victim, etc.

In addition to the above-mentioned examples there are often specific types of mobbing, such as:

• Empty table mobbing – In this case, the victims are not given any work tasks or are deprived of the resources they need to work, which makes their existence in the workplace completely meaningless, or they are assigned the work tasks that are far below their professional level;

• Full table mobbing – In this case, the victim is overwhelmed with work tasks, short-term appointments, forced to perform tasks that damage his/her health, is forbidden to take annual leave, resting periods at the end of each workday, or even have a lunch break.

In addition to these, there are two more types of mobbing:

• Horizontal mobbing – This is the type of mobbing among employees whose positions are at the same level of hierarchy as the employer;

• Vertical mobbing – This type of mobbing is performed by a superior towards a subordinate employee or vice versa (e.g., a director abuses an employee or an employee harasses the director). A subtype of such mobbing, which often occurs in practice, is the so-called strategic mobbing that exists when superiors abuse one employee at a time until they destroy an entire group of employees.

How to protect yourself against mobbing?

The procedure of protection against harassment at work depends on who the abuser is.

• If a director of the company is the abuser, the employee may immediately file a lawsuit at court.
• If an employee is accused of harassment, the mistreated employee is obliged to file an appeal to initiate the procedure of protection against harassment. The appeal is then delivered to the employer who must offer, within three workdays, mediation as the solution.

In cases when the employee who considers himself subject to harassment is also under threat to his health, life, or irreparable damage, the employer must impose one of the following measures: a transfer to another workplace, with the same or different tasks, or a paid suspension from work. There is also a possibility to determine protective measures during the proceedings before the court, at the party’s initiative or ex officio.

Mediation

Mediation at the workplace is a peaceful way of solving the issue but is not mandatory, although the employer is obliged to offer mediation to his employees as a way to resolve the disputed relationship within three days from the day of being informed about it. Within three days, a mediator is selected by agreement of all persons involved: the employee who suffers abuse, the one who is accused of being an abuser, and the employer who proposed mediation.

A mediator is a third party enjoying the trust of the parties in the dispute and acting independently and impartially to resolve the problem. However, the mediator has no right to impose a solution on the participants in this procedure. He can only propose a solution, communicate separately with the parties in the procedure, but also conduct joint talks with the participants. Mediation shall be completed within eight days from the day of the appointment of the mediator or no later than 30 days from the day of the appointment of the mediator when there are circumstances to extend this procedure.

The mediating procedure can end in one of the following ways:

• Concluding a written agreement between the parties involved if the mediation was successful. The agreement contains measures directed towards prohibiting the harassing behavior;

• After consulting the other parties, the mediator decides that the procedure is suspended, if the further proceeding is not justified;

• A party writes up a statement on renouncing further proceedings.

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.

What if mediation does not work?

If there is a based suspicion that the harassment has occurred, or the right to protection from harassment has been abused, the employer must start the procedure for establishing the responsibility of the employee for violation of labor discipline.

If it turns out that the harassment has occurred, the employer must undertake one of the following measures:

• Warn the employee who is abusing other employees;
• Move the abuser into another working environment;
• Remove him from work, for four up to 30 working days, without reimbursement of salary;
• If the employee repeats the harassing behavior within six months from the day the measures were imposed, the employer may terminate the employment contract.

Lawsuit for workplace harassment

An employee who considers himself/herself a victim of mobbing can file a lawsuit within 6 months from the day the abuse occurred for the last time. In addition to that, if the mediation was initiated and an employee is not satisfied with the outcome of mediation or if the employee is not satisfied with the outcome of the internal procedure conducted by the employer against the employee-abuser, the victimized employee can file a lawsuit within 15 days from the day it received the notice about the outcome of the procedure.

The proceedings take place before a higher court based at the residence of the victimized employee.

If the court finds that there was an abuse at work, the amount of damages is awarded based on a judge’s free opinion, depending on the period during which the abuse took place, the level of abuse, potential health issues of the victim as a result of the abuse, etc. An employee who is a victim of mobbing should demonstrate the likelihood of having suffered an abuse and then the burden of proving it is transferred to the employer. Also, in this process, a recording made in secret cannot be used as evidence, because such evidence is prohibited due to the fact that unauthorized recording of other persons is a criminal offense.

What can be used, on the other hand, is the evidence reported from doctors about impaired health, written documentation, messages sent via mobile phone through various applications, etc.

Conclusion

The issue of preventing abuse at work is certainly of great importance for employers and they have a legal obligation to deal with it. In practice, employers sometimes fail to respond when cases of workplace harassment arise, resulting in legal action, or even if they do respond, their reaction is insufficient and/or untimely.

In rare situations, managers take preventive measures by organizing workshops, lectures, and practical training about identifying and preventing workplace harassment for both employees and management staff. This is something that should become a more frequent practice.

In any case, the employers should be aware of the serious sanctions they can face, and invest more time, energy and effort into creating a positive working environment. Not only will this facilitate their overall business, but it will also help them avoid potential material losses, and, more importantly, the irreparable reputational damage.