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A recent ruling of the Constitutional Court that protected the guard of a residential complex in Barranquilla from the workplace harassment suffered by the administrator of the co-ownership once again put this type of situation that thousands of Colombian workers face every year. (Also read: With tutelage, vigilante manages to make the administrator apologize).
In the ruling, the Constitutional Court, with a presentation by Judge Cristina Pardo, re-established the guidelines on which a worker can identify if he is being a victim of workplace harassment.
What is it?
In 2006 a law was created, 1010, which establishes that workplace harassment is all “persistent and demonstrable” conduct that generates fear, intimidation, terror, anguish or that causes a labor damage, generates demotivation at work or induces to quit.
But, in addition, the Constitutional Court brought up authors such as Heinz Leymann, who assures that workplace harassment is a “phenomenon in which a person or group of people exercises extreme psychological violence, systematically and recurrently “about another person in the workplace.
He also quotes Marie-France Hirigoyen, who says that workplace harassment is repeated behavior, with the aim of dominating or controlling the other, and that violate the dignity of the worker.
(Also read: What is considered workplace harassment during teleworking?)
In addition, it quotes the International Labor Organization, which ensures that workplace harassment can be an action “verbal or psychological of a systematic nature, repeated, persistent “whereby a person humiliates, offends, or intimidates a worker at their workplace, or at a site in connection with work.
And in 2017 the same Constitutional Court said that workplace harassment is a recurring practice carried out against a worker, where there is psychological or physical violence to “destroy your professional reputation or self-esteem.” These aggressions, the Court pointed out, can generate professional illnesses such as work stress, affect self-esteem, lead to lower performance at work and induce resignation.
From these definitions, at least three factors of workplace harassment are clear: this conduct is systematic and repeated, occurs within the scope of an employment relationship, and in between it has degrading treatment that affects the dignity of the employee.
Who can be responsible for workplace harassment?
The victim may be an employee or worker who receives workplace harassment from an employer, a boss, or an immediate or immediate superior.
It can also be developed by a co-worker or subordinate. This means that the harasser does not necessarily have to be a hierarchical superior.
Workers can be part of the public sector or private sector.
What types of workplace harassment are there?
As harassment does not only occur between superiors against their subordinates, there are several types that can occur in an employment relationship, according to the Constitutional Court:
1. Downward vertical harassment: It is the one that occurs when the aggressor is the hierarchical superior, or boss, of the affected worker.
2. Ascending vertical harassment: It occurs in the cases where the person who suffers the harassment is a person who has a higher hierarchical rank over the person who is developing the behavior. That is, it would be the situation of a boss or a person with a higher work scale who is harassed by a subordinate or someone who has a lower work position.
3. Horizontal harassment: It is the one that occurs between co-workers who have the same job position or the same level.
(We invite you to read: Am I obliged to respond to orders from my boss if I am on vacation?).
What behaviors can involve workplace harassment?
Each case is particular, but the Constitutional Court has given some examples such as the following:
- Attacks in working conditions: When a worker’s functions are changed, they are removed from jobs they performed regularly, they are denied tools or information to carry out their responsibilities.
- Attacks on personal dignity: They occur when a worker is ridiculed for some of his characteristics or rumors are spread about him.
- Isolation: when the worker is not addressed, or is sent to isolated offices from the rest of the team.
- Verbal or psychological violence: when violence is used as insults.
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How does the law classify workplace harassment?
Law 1010 of 2006, created to prevent, correct and punish workplace harassment behaviors, establishes a classification of the behaviors that involve this practice.
- Labor abuse: It is an act of violence against physical and moral integrity, sexual freedom, which damages the rights to privacy and the good name of the worker.
- Labor persecution: Repeated behaviors that are arbitrary and may lead to the resignation of the worker.
- Discrimination in the work area: differential treatment against a worker for reasons of sex, race, national or family origin, language, religion, political or philosophical opinion.
- Occupational nuisance: hinder the fulfillment of the tasks assigned to a worker.
- Labor inequality: assign a worker some functions, belittling him.
What sanctions are there against workplace harassers?
The Court recalled that, according to Law 1010 of 2006, public servants who engage in workplace harassment will be sanctioned in the same way as when a very serious disciplinary offense is committed, where the Unique Disciplinary Code carries penalties of 10 to 20 years.
(We invite you to read: In which cases is a strike for health workers allowed?).
If this conduct occurs in the private sector and this led to the resignation of the employee, termination should be understood as a termination of the contract without just cause, for which the compensation proceeds.
Besides the law contemplates economic fines of between 2 to 10 minimum wages monthly laws in force both for those who commit the conduct of workplace harassment and for those who tolerate it. In addition, they have the obligation to pay the ARL or EPS 50 percent of the treatment for occupational diseases suffered by the worker.
Can there be workplace harassment in an outsourced contract?
Yes, and it is precisely one of the reasons why the decision of the Constitutional Court in the case of the Barranquilla vigilante is so relevant.
The high court establishes that even when there is a labor outsourcing, subcontracting or contract of Outsourcing, If in the middle of this relationship there are circumstances of harassment such as asymmetry, intention to harm, and deliberate and systematic aggression, it may be a case of harassment.
Thus, regardless of whether the person who harasses a worker is not his direct employer, if it occurs in a context of subordination or if the other characteristics of the harassment are met, the protection of Law 1010 can be requested 2006.
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