Legal Approach to Mobbing
After stating the concept, characteristics and effects in victims of mobbing, the next question that rises is the process for legal action taken by the victim, the implications for the defendant, and the role of organizations in the process.
The collaborators who file a lawsuit for workplace harassment or mobbing, as it is known, should be aware that it is a long process that requires patience and presenting all the necessary evidence.
In an interview with Perfiles Tecnológicos, the specialist in employment law, Alonso Arley (2019), states that in order to present evidence, the accuser should follow article 479 of the Labor Code, and present testimonial, documentary, medico-legal psychological, and expert evidence to the Work Ministry of Costa Rica, and be aware that the process may take up to 3 years.
Among the evidence, as pointed out by Lic. Arley (personal communication, 2019), the accusers should include a report on the effects of mobbing on their psychological and physical integrity. This situation must have taken place once a week for at least 6 months to show a causal relationship between the harassment and the consequences over the worker’s health.
On the other hand, the defendant faces a process with a possible sentence of the payment of an indemnity between ₡6.9 000 000 and ₡10 000 0000, as highlighted by lawyer Arley (personal communication, 2019), and according to 2 votes from Sala Segunda from the Supreme Court of Justice number 1436-2018 and 1680-2018, for damages, as well as dismissal with just cause.
The process for both victims and defendants is long, enervating and it may even imply revictimization. How could they mitigate this phenomenon? Here is where the organizations play an important role as they can identify, penalize and prevent these behaviors.
In a publication in El Financiero, Montero (2016) refers to mobbing and organizations by stating that “bad management of the workplace environment makes companies co-responsible when their collaborators perform abusive practices and harassment towards one or several work mates (…)”
The organizations must make sure they provide a work environment that is favorable to their collaborators, where they can feel at ease, just as it is mentioned by Arley (personal communication, 2019) “the work relation must follow parameters of respect and thoughtfulness in both directions.” Furthermore, the lawyer points out that this consideration between both parties is established in the Labor Code of Costa Rica, article 69, paragraph c.
But which are the warning signs that organizations need to identify to prevent mobbing? Montero (2016) quotes psychologist Ingrid Naranjo on the subject by mentioning the following signs:
- Negative work environment
- Work organization deficiencies
- Unresolved conflicts
- Individual competition as a supreme value
- The search for justification of dismissals that lack solid arguments
- The need to cover organizational situations and people who do not accomplish their tasks; in other words, seeking to deviate the attention from something or someone.
Hence, companies are accountable for detecting and identifying improper behavior that menaces the nature of work roles, but mainly employees’ physical, emotional and mental wellbeing. If companies work in climate studies, job performance evaluations and make a conscious effort to reinforce a positive organizational environment, it is possible to identify red flags on time for taking action and give a resolution to the case and prevent mobbing.
Arley (personal communication, 2019) explains that companies may work against mobbing under case law, which limits the concept in the moment of solving a case. In addition, companies may implement internal regulation and policies according to the criteria established by the Work Ministry for the prevention of mobbing.
On the other hand, psychologist Naranjo (2016) as cited by Montero (2016), mentions that avoiding mobbing “(…) is a managerial responsibility, since it is a psychosocial risk within the organizations, (and that) the responsibility is collectively shared because without accomplices (active or passive) mobbing cannot thrive.
In addition, psychologist Naranjo states that ideally an interdisciplinary team knowledgeable in the topic-lawyers, psychologists and work doctors- should analyze and deal with organizational cases. Companies should develop their anti-mobbing protocols, create their own internal policies, and have strong recruiting processes that identify any red flags for profiles of abusers. All of this to avoid potential exposure to mobbing for the employees and the involvement of the company in a judiciary process that may risk its employer brand.
Montero, J (2016). Las empresas son co-responsables del mobbing o acoso laboral. Retrieved from: https://www.elfinancierocr.com/gerencia/las-empresas-son-co-responsables-del-i-mobbing-i-o-acoso-laboral/5G26DBNA75FM3HIMXEP2CZKC5I/story/