Member Article

“Desperate times call for desperate measures”. We are all aware that the global crisis is impacting employers worldwide. Companies have been forced to close production lines, non-core activities have been transferred to outsourced service providers and numerous workplaces have been forced to close all together. It has become a struggle to merely hold onto one’s job. Such circumstances have facilitated the increase of workplace harassment (i.e. mobbing). Without intending to lessen the importance of handling existing workplace harassment and the subsequent consequences in an adequate fashion, this piece tackles the rising issue of employee abuse of the institute of workplace harassment in the Balkans.

Why would someone feign harassment?

It’s simple – this is a method employees use in order to prolong or prevent dismissal, or in order to receive a severance package or to increase the amount of a package that has already been offered.

Harassment claims tend to rise when companies announce their intention to downsize their workforce. When an employee isn’t performing and evidence of poor behaviour can be found, employees have a tendency to claim that they are being harassed. Although employers are not obligated to cease termination procedures in this case, they are still required to initiate mediation procedures, which ultimately may delay dismissals until the air has been cleared.

Employees who abuse the process will usually note at some point that they might acquiescent to drop charges if the employer agrees to pay a certain amount of compensation and although this is not the purpose of mediation, it is often the outcome that the employee desires.

In this manner, procedures intended to protect employees from workplace harassment become leverage to hold onto ones job or at the very least to be offered a severance package or increase the amount of one that has already been offered.

Can an employer determine who is actually being harassed?

Determining abuse is a tricky issue.

Workplace harassment, by definition, depends on an employee’s personal perception of whether certain actions carried out by co-workers were meant to threaten personal dignity and/or integrity, and whether or not these actions were carried out in order to result in the termination of employment. This criterion is so vague and subjective that an employer is left with no argument to employee statements on their personal interpretation of events leading up to a harassment charge.

Harassment and the subsequent stress from being harassed can often trigger health issues in employees. However, even if the resulting health concerns aren’t evidenced, this does not benefit an employer seeking to defend itself from a harassment charge. Moreover, employees sometimes misrepresent or exaggerate pre-existing health conditions in order to justify or evidence that they have been harassed at the workplace. Even if health issues have been substantiated, medical doctors can hardly determine without a doubt that medical issues have been directly triggered by harassment at the workplace (and not e.g. by the standard stress that everyone deals with at work).

Harassment cases are nearly impossible for employees to prove. There is seldom hardcopy evidence or witnesses who are willing to testify. This type of behaviour is usually expressed in person, behind closed doors and with body language. Even in instances where several people have been privy to harassment situations, they will not typically confirm this because often they have either been harassed or are doing the harassing. Therefore, it is very difficult for those actually being harassed to claim so openly, because of their fear that no one will support or even believe their claim. This is one of the main reasons why the Serbian Law on Prevention of Harassment at Work finds it sufficient for employees to show the likeliness of a mobbing claim, while the employer has the burden of proving that harassment has not taken place. But for those intending to misrepresent themselves, the law works to their advantage, as they only need to show likeliness and are not required to produce proof of any sort.

The timing of a mobbing claim and the claimant’s willingness to accept monetary compensation during the mediation process may further illustrate a claimant’s intent to exploit the process rather than to resolve issues with an employer. However, consideration must be given to individual personalities, social intelligence and awareness of the process so that sincere cases are not mistakenly interpreted as exploitation.

Therefore, because of the current state of affairs, an employer cannot independently determine that an employee is misrepresenting the institute of workplace harassment. It has been accepted in practice that only the court, with the assistance of experts, may categorically determine if harassment has taken place or not.

Conclusion

Due to unclear definitions and the fluid nature of mobbing, there is no swift and practical solution that will help an employer distinguish actual harassment from fictitious harassment. Employers must be aware that when livelihood is at stake, employees will fight for their jobs with everything they have and it may get dirty along the way. A mobbing claim is, in this respect, just a potential weapon in an employee’s arsenal that may be used when other possibilities fail.

Because of this, instead of focusing on real mobbing cases and their underlying causes, employers and courts are required to waste time and assets addressing unjustified claims. In the future, hopefully legislation and precedents will be set to help employers prevent the misuse of mobbing, and anti-mobbing regulation, which should protect individuals from harassment, will be able to fulfil is objective.

 

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