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26 November 2014
The Supreme Court has issued a noteworthy decision (20230/2014) concerning workplace harassment – so-called 'mobbing' – and its prerequisite conditions.
Swedish psychologist Heinz Leymann conducted research during the 1980s and 1990s to identify behaviour associated with workplace mobbing. He defined 'mobbing' as:
"hostile and unethical communication which is directed in a systematic manner by one or more individuals, mainly toward one individual, who, due to mobbing, is pushed into a helpless and defenseless position and held there by means of continuing mobbing activities."
The Supreme Court has affirmed in previous case law that not all conduct which can potentially harm the working relationship may be considered mobbing. The court has specified that mobbing is a practice that is sustained over a long period of time and occurs with high frequency; it also involves the targeting of a specific employee by the employer or co-workers and the subjection of this employee to ongoing aggressive acts intended to ostracise the employee in his or her working environment until the employee resigns.
In accordance with case law, the Supreme Court has identified the following factors which must be present in order to make a workplace harassment claim:
The burden of proof lies with the employee, who must adequately demonstrate all four of these factors. The employee must expressly provide this evidence in the first-instance application. In the case at hand, the Supreme Court upheld the appeal court's ruling that the manner in which the applicant had submitted evidence precluded it from accepting the mobbing claim. The claim had been submitted only at the appeal court level – not at first instance – and was therefore considered late and a new issue which extended the subject of the dispute. The evidence was thus deemed inadmissible.
The issue of mobbing is particularly relevant with regard to Decree-Law 231/2001, which introduced the regulatory framework governing the administrative liability of legal entities, companies, associations and bodies devoid of legal personality. A corporation may be held liable for certain listed offences committed or attempted in its own interests or for its own benefit.
Injury and serious injury are among the offences listed in the law (as amended by Decree-Law 81/2008). Where workplace mobbing is concerned, case law links depression and anxiety symptoms to crimes of injury under Articles 582 and 590 of the Criminal Code (Supreme Criminal Court Decisions 28603 (March 28 2013) and 20230 (September 25 2014)). Therefore, in certain mobbing cases where an employee has experienced stress-related illness, the company may face the risk of exposure to administrative liability under Law 231/2001 and may be held liable for the injury.
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