𝐒𝐮𝐫𝐯𝐢𝐯𝐚𝐥 𝐦𝐨𝐝𝐞
Do not kid yourselves. You do not all love your jobs. If some of you do, then good for you and I hope it lasts. The reality however, is that the majority of you work because you have to. Most of you work because your lives depend on it; you have bills to pay, mortgages, medical insurance, leasing, people to feed etc. Survival is the word you are looking for. You do not question it, you just do it.
And it is important to remember what you are giving up in exchange of your monthly salaries, bonuses and what have you: your family life, your time with your loved ones and friends, the first steps of your first born and that trip to South America you always dreamed about. Once again, for most of you, this is your routine.
A monotonous and mundane existence, whereby you just tag along with what life has to offer. You go to work. You pay your bills. You save when you can. You hope you can get a couple of promotions along the way. You give your best. 8 hours or more everyday – every single day until you retire. Some of you will go that extra mile; perhaps there is that promotion you want or that raise you are looking for. Ultimately, most of you work because you need to survive. You need money. Nothing comes free nowadays. As Bill Hicks once said, there is a dollar sign on everything nowadays.
Yes, you will have fun along the way. After all, you are all social animals. Yet, arguably, you are still giving up the important things in life and you are going to work. You are giving that time in exchange of money.
Who are you offering your services to? Your employer. The majority of you do not work for charities. You work for profit-making organisations. Or if it’s not profit making, there is usually a bottom line that that makes them tick. For many of you, you are a cog in that in that machine that births the bottom line. The bottom line matters more than you. The sad reality of capitalism: you are a pawn.
It is worth remembering the power relations between the worker and the employer. It will come as no surprise; they are largely in favour of the employer. They have the economic power, the financial means, the ability to hire and fire, the ability to hire the best and very often the most expensive legal team that money can buy to protect them from you in case you decided to sue them.
The worker, on the other hand, has none of that. The worker, on top of his or her concerns of survival, of providing for family and for himself, also has the fear of losing his job, his income. A perpetual Damocles sword if you will. For many losing their jobs is a tragedy of incommensurable proportions. Some never recover from it sadly. Some may even commit the irreversible.
In this lopsided (from the start) game, is it too much to ask that, when you are providing your valuable services and time to your employer, you are treated with a minimum degree of respect by the latter?
Is it too much to ask to have a safe place of work – free from bullying, harassment, abuse, humiliation, intimidation, contempt, disdain, etc.
Is it too much to ask for respect, empathy, consideration, safety and security in the workplace?
Should the above questions even be asked? Aren’t those the minimums that your employer should provide? Implied terms in your contract of employment?
Recent events, unfortunately, will tend to suggest otherwise. In that regard, it is important to understand your right as a worker.
𝐖𝐡𝐚𝐭 𝐝𝐨𝐞𝐬 𝐭𝐡𝐞 𝐥𝐚𝐰 𝐬𝐚𝐲?
From the outset, we need to be clear on what legislation is relevant to us in instances of violence at work.
I have seen a number of social media posts referring to the The Occupational Safety And Health Act (OSHA)2005. More specifically section 12. of the OSHA “Exposure to serious and imminent danger”, whereby it is stated: s12(1) “Every employer shall –(a) establish and give effect to any appropriate procedures to be followed in the event of serious and imminent danger to any person at work in his undertaking and s12(2)(b) where an employer shall “enable the employee to stop work and immediately proceed to a place of safety in the event to his being exposed to serious and imminent danger”.
This could be well be interpreted as a dangerous situation at work – which violence is.
However, the interpretation section of OSHA defines “danger” as “circumstances which may be reasonably expected to occur in relation to a machine, means that the machine is a reasonably foreseeable cause of injury to any person acting in a way in which a human being may reasonably be expected to act.
So, unless you fear that a machine is about to be violent to you (you never know, they may well rise at some point – but let’s keep this to reality), OSHA is irrelevant to “violence at work”.
The Workers’ Rights Act 2019 is your port of call.
Our legislation is clear. Section 114 of the WRA : Violence at work, states that:
𝐍𝐨 𝐩𝐞𝐫𝐬𝐨𝐧 𝐬𝐡𝐚𝐥𝐥 –
(a) harass, sexually or otherwise;
(b) assault;
(c) verbally abuse, swear at or insult or humiliate in any manner whatsoever;
(d) express the intention to cause harm to;
(e) bully or use threatening behaviour towards;
(f) use aggressive gesture indicating intimidation, contempt or disdain towards; or
(g) by words or act, hinder, a worker, including any person undergoing training under any training scheme, in the course of or as a result of his work or training.
And for you doubters out there, here are some definitions of those big fancy words above, provided by the same act:
“𝐛𝐮𝐥𝐥𝐲𝐢𝐧𝐠” includes a pattern of offensive, intimidating, malicious, insulting or humiliating behaviour or an abuse or misuse of power or authority which attempts to undermine an individual or group of individuals, gradually eroding their confidence and capacity which may cause them to suffer stress;
“𝐡𝐚𝐫𝐚𝐬𝐬𝐦𝐞𝐧𝐭”, in relation to a worker, includes any unwanted conduct towards the worker, whether verbal, non-verbal, visual, psychological or physical, based on age, impairment, HIV status, domestic circumstances, sex, sexual orientation, gender, race, colour, language, religion, political, trade union or other opinion or belief, national or social origin, association with a minority, birth or other status, which occurs in circumstances where a reasonable person would consider the conduct as harassment of the worker;
“𝐬𝐞𝐱𝐮𝐚𝐥 𝐡𝐚𝐫𝐚𝐬𝐬𝐦𝐞𝐧𝐭” has the same meaning as in the Equal Opportunities Act;
“𝐯𝐞𝐫𝐛𝐚𝐥 𝐚𝐛𝐮𝐬𝐞” includes screaming, yelling, name calling and making mean and disrespectful remarks with a view to humiliating a person.
The law is clear. Any form of violence will not be tolerated in the workplace. The worker is protected and rightfully so. All workers, regardless of their profession, are protected, since s114, which is itself Part XI of the Workers Rights Act applies to all workers under the said Act.
𝐓𝐡𝐞 𝐨𝐛𝐯𝐢𝐨𝐮𝐬 𝐜𝐚𝐬𝐞𝐬
Importantly, anyone (not only the employer) can be guilty of violence at work. Look no further than Honourable Kenny Dhunnoo practising his shoving skills on a nurse in a private hospital. The law is also clear and wide enough to make sure that it covers a wide range of inappropriate behaviours ranging from bullying to verbal abuse.
Had s114 of the WRA not existed, physical violence would still be an offence under our criminal code. The WRA is a reflection of that.
If in doubt, as a general rule, try not to be physically violent (unless you are in a genuine situation of self defence) anywhere. You are not allowed to be violent to anyone anywhere, let alone the workplace.
Essentially, what you can take from the above is that there are behaviours not tolerated in society at large and they are not tolerated in the workplace.
It saddens me to even have to clarify this. Unfortunately, this logic is lost on many. Physical violence is and has been a reality for many workers who suffer in silence.
If you read this and you are or have been guilty of physical violence at work, you are scum. Period.
𝐓𝐡𝐞 𝐥𝐞𝐬𝐬 𝐨𝐛𝐯𝐢𝐨𝐮𝐬 𝐜𝐚𝐬𝐞𝐬
More specifically (and most unfortunately), in the superior and subordinate relationship that exists between Management and anyone being “managed”, the power relations means that Management often acts as if everything is allowed just because, well, they are Management.
Yelling, shouting, patronising and sarcastic remarks, belittling, swearing, comments towards a worker alone or in front of other members of staff (other workers) is a usual occurrence for many.
The tragedy is that this form of violence is very often the most common form of violence in the workplace. It’s insidious. It creeps in the daily working life of the victim without the person not doing anything about it. In this superior-subordinate relationship, the victim does not even realise that this may be deemed violence in the work place. It is a sad fact that sometimes the victim will even think of it as part and parcel of their daily work life.
Instances of being ostracised, shunned, ignored on purpose, not even being acknowledged by your boss (I was once told by a company Director that it was impossible for him to be guilty of harassment against my client since he simply ignored him all day “Je ne lui dis même pas bonjour les matins” – completely acceptable in his view), nit picking, micro-management for no rational reason, constant pressure on emails or otherwise, name-calling and what have you abound in the workplace.
Often victims will blame themselves for the behaviour of their bosses. “I need to improve”, “My performance is not good enough”, “My boss must be right. He knows better. He is the boss after all”. Whilst all of this may well be true. Nothing justifies any instances of violence of work, not even the poor performance of a worker.
There is no justification. There never will be.
The law is clear. I, once again refer to s114. No person shall – harass, sexually or otherwise;
assault; verbally abuse, swear at or insult or humiliate in any manner whatsoever;
express the intention to cause harm to; bully or use threatening behaviour towards; use aggressive gesture indicating intimidation, contempt or disdain towards; or
by words or act, hinder, a worker, including any person undergoing training under any training scheme, in the course of or 𝐚 𝐫𝐞𝐬𝐮𝐥𝐭 𝐨𝐟 𝐡𝐢𝐬 𝐰𝐨𝐫𝐤 or training.
“𝐎𝐫 𝐚 𝐫𝐞𝐬𝐮𝐥𝐭 𝐨𝐟 𝐡𝐢𝐬 𝐰𝐨𝐫𝐤” means that however incompetent, inept, useless or clueless one may be at their job - nothing will justify anyone to be subject to any form of violence at work.
The law is here to protect the worker. End of. If after having read this part and you realise that you may be guilty of those “less obvious” instances of violence at work, you are still scum!
𝐓𝐡𝐞 𝐝𝐮𝐭𝐲 𝐨𝐟 𝐭𝐡𝐞 𝐄𝐦𝐩𝐥𝐨𝐲𝐞𝐫
What about the Employer, I hear you ask? Well, along with any worker or officer of the employer they may also be guilty of violence at work but not only that, they have a responsibility that no form of violence is committed by anyone on their premises. This may seem harsh but at least they have a duty to not allow a situation in which an incidence of violence at work to go unattended.
S114(3) states: “An employer shall be vicariously liable for violence at work, including sexual harassment, committed by a worker and any third party where the employer knew or should have known of the violence at work.
All this fancy language simply means that an employer can be liable for an act of violence at work committed by one of it’s employees or anyone else (that is not necessarily an employee) if the employer knew about the said act or should have known about it.
Furthermore, section 114(4) states that “An employer shall enquire into any case of alleged violence at work and take appropriate action to protect the rights of the worker not later than 15 days after the case is reported to him or he becomes aware of the case”
Again, simply put, the Employer, when in presence of a case of alleged violence at work, has an obligation (“shall”) to investigate into any cases of alleged violence at work and must take appropriate action (the law is unclear on what this entails but you can safely bet that is certainly not actions to further the incidence of violence) to protect the rights of the work (essentially the rights to be safe at work) NOT later than 15 days after the matter is either reported to him or after he becomes aware of the alleged incident (that is whether reported or not)
𝐏𝐨𝐬𝐬𝐢𝐛𝐥𝐞 𝐒𝐚𝐧𝐜𝐭𝐢𝐨𝐧𝐬
Violence at work should not be treated lightly. Section 114(5) states that “Any person who contravenes subsection (1),(2) or (4) shall commit an offence and shall, on conviction, be liable to a fine not exceeding 100,000 rupees and to imprisonment for a term not exceeding 5 years”.
Yes. You’ve read this right. There is the possibility of prison. So be very careful if prison food is not in your list of things to try.
𝐂𝐨𝐧𝐜𝐥𝐮𝐬𝐢𝐨𝐧
So, hopefully this would have enlightened you on your rights as a worker to not be subjected to violence. The very fact that I am having to write this is incredibly depressing since it is obvious that instances of violence at work have happened and is still too much of a regular occurrence in Mauritius.
I take solace at the thought that there may be people who read this (you know who you are!) and are squirming at the possibility that they may be guilty of a criminal offence. If you are in that category but feel no shame or remorse, well your time will come.
Respect, empathy, kindness, safety, security are sine qua nons in the workplace. Bullying, intimidation, humiliation, disdain, abuse and contempt are not. To the possible silent victims out there. Speak up.
Miguel Ramano, Barrister
Do not kid yourselves. You do not all love your jobs. If some of you do, then good for you and I hope it lasts. The reality however, is that the majority of you work because you have to. Most of you work because your lives depend on it; you have bills to pay, mortgages, medical insurance, leasing, people to feed etc. Survival is the word you are looking for. You do not question it, you just do it.
And it is important to remember what you are giving up in exchange of your monthly salaries, bonuses and what have you: your family life, your time with your loved ones and friends, the first steps of your first born and that trip to South America you always dreamed about. Once again, for most of you, this is your routine.
A monotonous and mundane existence, whereby you just tag along with what life has to offer. You go to work. You pay your bills. You save when you can. You hope you can get a couple of promotions along the way. You give your best. 8 hours or more everyday – every single day until you retire. Some of you will go that extra mile; perhaps there is that promotion you want or that raise you are looking for. Ultimately, most of you work because you need to survive. You need money. Nothing comes free nowadays. As Bill Hicks once said, there is a dollar sign on everything nowadays.
Yes, you will have fun along the way. After all, you are all social animals. Yet, arguably, you are still giving up the important things in life and you are going to work. You are giving that time in exchange of money.
Who are you offering your services to? Your employer. The majority of you do not work for charities. You work for profit-making organisations. Or if it’s not profit making, there is usually a bottom line that that makes them tick. For many of you, you are a cog in that in that machine that births the bottom line. The bottom line matters more than you. The sad reality of capitalism: you are a pawn.
It is worth remembering the power relations between the worker and the employer. It will come as no surprise; they are largely in favour of the employer. They have the economic power, the financial means, the ability to hire and fire, the ability to hire the best and very often the most expensive legal team that money can buy to protect them from you in case you decided to sue them.
The worker, on the other hand, has none of that. The worker, on top of his or her concerns of survival, of providing for family and for himself, also has the fear of losing his job, his income. A perpetual Damocles sword if you will. For many losing their jobs is a tragedy of incommensurable proportions. Some never recover from it sadly. Some may even commit the irreversible.
In this lopsided (from the start) game, is it too much to ask that, when you are providing your valuable services and time to your employer, you are treated with a minimum degree of respect by the latter?
Is it too much to ask to have a safe place of work – free from bullying, harassment, abuse, humiliation, intimidation, contempt, disdain, etc.
Is it too much to ask for respect, empathy, consideration, safety and security in the workplace?
Should the above questions even be asked? Aren’t those the minimums that your employer should provide? Implied terms in your contract of employment?
Recent events, unfortunately, will tend to suggest otherwise. In that regard, it is important to understand your right as a worker.
𝐖𝐡𝐚𝐭 𝐝𝐨𝐞𝐬 𝐭𝐡𝐞 𝐥𝐚𝐰 𝐬𝐚𝐲?
From the outset, we need to be clear on what legislation is relevant to us in instances of violence at work.
I have seen a number of social media posts referring to the The Occupational Safety And Health Act (OSHA)2005. More specifically section 12. of the OSHA “Exposure to serious and imminent danger”, whereby it is stated: s12(1) “Every employer shall –(a) establish and give effect to any appropriate procedures to be followed in the event of serious and imminent danger to any person at work in his undertaking and s12(2)(b) where an employer shall “enable the employee to stop work and immediately proceed to a place of safety in the event to his being exposed to serious and imminent danger”.
This could be well be interpreted as a dangerous situation at work – which violence is.
However, the interpretation section of OSHA defines “danger” as “circumstances which may be reasonably expected to occur in relation to a machine, means that the machine is a reasonably foreseeable cause of injury to any person acting in a way in which a human being may reasonably be expected to act.
So, unless you fear that a machine is about to be violent to you (you never know, they may well rise at some point – but let’s keep this to reality), OSHA is irrelevant to “violence at work”.
The Workers’ Rights Act 2019 is your port of call.
Our legislation is clear. Section 114 of the WRA : Violence at work, states that:
𝐍𝐨 𝐩𝐞𝐫𝐬𝐨𝐧 𝐬𝐡𝐚𝐥𝐥 –
(a) harass, sexually or otherwise;
(b) assault;
(c) verbally abuse, swear at or insult or humiliate in any manner whatsoever;
(d) express the intention to cause harm to;
(e) bully or use threatening behaviour towards;
(f) use aggressive gesture indicating intimidation, contempt or disdain towards; or
(g) by words or act, hinder, a worker, including any person undergoing training under any training scheme, in the course of or as a result of his work or training.
And for you doubters out there, here are some definitions of those big fancy words above, provided by the same act:
“𝐛𝐮𝐥𝐥𝐲𝐢𝐧𝐠” includes a pattern of offensive, intimidating, malicious, insulting or humiliating behaviour or an abuse or misuse of power or authority which attempts to undermine an individual or group of individuals, gradually eroding their confidence and capacity which may cause them to suffer stress;
“𝐡𝐚𝐫𝐚𝐬𝐬𝐦𝐞𝐧𝐭”, in relation to a worker, includes any unwanted conduct towards the worker, whether verbal, non-verbal, visual, psychological or physical, based on age, impairment, HIV status, domestic circumstances, sex, sexual orientation, gender, race, colour, language, religion, political, trade union or other opinion or belief, national or social origin, association with a minority, birth or other status, which occurs in circumstances where a reasonable person would consider the conduct as harassment of the worker;
“𝐬𝐞𝐱𝐮𝐚𝐥 𝐡𝐚𝐫𝐚𝐬𝐬𝐦𝐞𝐧𝐭” has the same meaning as in the Equal Opportunities Act;
“𝐯𝐞𝐫𝐛𝐚𝐥 𝐚𝐛𝐮𝐬𝐞” includes screaming, yelling, name calling and making mean and disrespectful remarks with a view to humiliating a person.
The law is clear. Any form of violence will not be tolerated in the workplace. The worker is protected and rightfully so. All workers, regardless of their profession, are protected, since s114, which is itself Part XI of the Workers Rights Act applies to all workers under the said Act.
𝐓𝐡𝐞 𝐨𝐛𝐯𝐢𝐨𝐮𝐬 𝐜𝐚𝐬𝐞𝐬
Importantly, anyone (not only the employer) can be guilty of violence at work. Look no further than Honourable Kenny Dhunnoo practising his shoving skills on a nurse in a private hospital. The law is also clear and wide enough to make sure that it covers a wide range of inappropriate behaviours ranging from bullying to verbal abuse.
Had s114 of the WRA not existed, physical violence would still be an offence under our criminal code. The WRA is a reflection of that.
If in doubt, as a general rule, try not to be physically violent (unless you are in a genuine situation of self defence) anywhere. You are not allowed to be violent to anyone anywhere, let alone the workplace.
Essentially, what you can take from the above is that there are behaviours not tolerated in society at large and they are not tolerated in the workplace.
It saddens me to even have to clarify this. Unfortunately, this logic is lost on many. Physical violence is and has been a reality for many workers who suffer in silence.
If you read this and you are or have been guilty of physical violence at work, you are scum. Period.
𝐓𝐡𝐞 𝐥𝐞𝐬𝐬 𝐨𝐛𝐯𝐢𝐨𝐮𝐬 𝐜𝐚𝐬𝐞𝐬
More specifically (and most unfortunately), in the superior and subordinate relationship that exists between Management and anyone being “managed”, the power relations means that Management often acts as if everything is allowed just because, well, they are Management.
Yelling, shouting, patronising and sarcastic remarks, belittling, swearing, comments towards a worker alone or in front of other members of staff (other workers) is a usual occurrence for many.
The tragedy is that this form of violence is very often the most common form of violence in the workplace. It’s insidious. It creeps in the daily working life of the victim without the person not doing anything about it. In this superior-subordinate relationship, the victim does not even realise that this may be deemed violence in the work place. It is a sad fact that sometimes the victim will even think of it as part and parcel of their daily work life.
Instances of being ostracised, shunned, ignored on purpose, not even being acknowledged by your boss (I was once told by a company Director that it was impossible for him to be guilty of harassment against my client since he simply ignored him all day “Je ne lui dis même pas bonjour les matins” – completely acceptable in his view), nit picking, micro-management for no rational reason, constant pressure on emails or otherwise, name-calling and what have you abound in the workplace.
Often victims will blame themselves for the behaviour of their bosses. “I need to improve”, “My performance is not good enough”, “My boss must be right. He knows better. He is the boss after all”. Whilst all of this may well be true. Nothing justifies any instances of violence of work, not even the poor performance of a worker.
There is no justification. There never will be.
The law is clear. I, once again refer to s114. No person shall – harass, sexually or otherwise;
assault; verbally abuse, swear at or insult or humiliate in any manner whatsoever;
express the intention to cause harm to; bully or use threatening behaviour towards; use aggressive gesture indicating intimidation, contempt or disdain towards; or
by words or act, hinder, a worker, including any person undergoing training under any training scheme, in the course of or 𝐚 𝐫𝐞𝐬𝐮𝐥𝐭 𝐨𝐟 𝐡𝐢𝐬 𝐰𝐨𝐫𝐤 or training.
“𝐎𝐫 𝐚 𝐫𝐞𝐬𝐮𝐥𝐭 𝐨𝐟 𝐡𝐢𝐬 𝐰𝐨𝐫𝐤” means that however incompetent, inept, useless or clueless one may be at their job - nothing will justify anyone to be subject to any form of violence at work.
The law is here to protect the worker. End of. If after having read this part and you realise that you may be guilty of those “less obvious” instances of violence at work, you are still scum!
𝐓𝐡𝐞 𝐝𝐮𝐭𝐲 𝐨𝐟 𝐭𝐡𝐞 𝐄𝐦𝐩𝐥𝐨𝐲𝐞𝐫
What about the Employer, I hear you ask? Well, along with any worker or officer of the employer they may also be guilty of violence at work but not only that, they have a responsibility that no form of violence is committed by anyone on their premises. This may seem harsh but at least they have a duty to not allow a situation in which an incidence of violence at work to go unattended.
S114(3) states: “An employer shall be vicariously liable for violence at work, including sexual harassment, committed by a worker and any third party where the employer knew or should have known of the violence at work.
All this fancy language simply means that an employer can be liable for an act of violence at work committed by one of it’s employees or anyone else (that is not necessarily an employee) if the employer knew about the said act or should have known about it.
Furthermore, section 114(4) states that “An employer shall enquire into any case of alleged violence at work and take appropriate action to protect the rights of the worker not later than 15 days after the case is reported to him or he becomes aware of the case”
Again, simply put, the Employer, when in presence of a case of alleged violence at work, has an obligation (“shall”) to investigate into any cases of alleged violence at work and must take appropriate action (the law is unclear on what this entails but you can safely bet that is certainly not actions to further the incidence of violence) to protect the rights of the work (essentially the rights to be safe at work) NOT later than 15 days after the matter is either reported to him or after he becomes aware of the alleged incident (that is whether reported or not)
𝐏𝐨𝐬𝐬𝐢𝐛𝐥𝐞 𝐒𝐚𝐧𝐜𝐭𝐢𝐨𝐧𝐬
Violence at work should not be treated lightly. Section 114(5) states that “Any person who contravenes subsection (1),(2) or (4) shall commit an offence and shall, on conviction, be liable to a fine not exceeding 100,000 rupees and to imprisonment for a term not exceeding 5 years”.
Yes. You’ve read this right. There is the possibility of prison. So be very careful if prison food is not in your list of things to try.
𝐂𝐨𝐧𝐜𝐥𝐮𝐬𝐢𝐨𝐧
So, hopefully this would have enlightened you on your rights as a worker to not be subjected to violence. The very fact that I am having to write this is incredibly depressing since it is obvious that instances of violence at work have happened and is still too much of a regular occurrence in Mauritius.
I take solace at the thought that there may be people who read this (you know who you are!) and are squirming at the possibility that they may be guilty of a criminal offence. If you are in that category but feel no shame or remorse, well your time will come.
Respect, empathy, kindness, safety, security are sine qua nons in the workplace. Bullying, intimidation, humiliation, disdain, abuse and contempt are not. To the possible silent victims out there. Speak up.
Miguel Ramano, Barrister