In the recent decision of La Foy v Department of Justice and Constitutional Development and Others 1952/2017, the Labour Court dismissed an application by an employee who sought relief as a result of alleged harassment by her employer, together with a plea for the reassignment of her job responsibilities, and a claim for compensation.

At a glance: 

• In the recent decision of La Foy v Department of Justice and Constitutional Development and Others 1952/2017, the Labour Court dismissed an application by an employee who sought relief as a result of alleged harassment by her employer.
• The Labour Court further stated that managerial functions generally do not threaten dignity or equality, nor do they necessarily constitute unfair labour practices. In this instance the alleged actions did not meet the definition of harassment.
• This judgment underscores the Labour Court’s vigilance when addressing workplace harassment complaints. It highlights the potential for employees to misconstrue the distinction between managerial authority and harassment, often due to the grammatical nuances of the term “harassment”.

The Labour Court had to consider whether the applicant’s claim of harassment constituted unfair discrimination based on arbitrary grounds under the Employment Equity Act 55 of 1998, as amended (EEA) and whether the provisions of the Labour Relations Act 66 of 1995, as amended could be bypassed to build a case under the EEA.

The applicant was employed as a Deputy Director-General in the Department of Justice and Constitutional Development (DJCD). During her tenure she endured a protracted period of suspension of five years out of a total period of seven years’ service with the DJCD. She was suspended during an investigation about charges that were subsequently discredited, but which culminated in her eventual dismissal.

The dispute was initially referred to the Commission for Conciliation, Mediation, and Arbitration (CCMA), where concerted efforts were made to amicably resolve the matter through conciliation. Regrettably, those endeavours were unsuccessful. Consequently, the CCMA issued a certificate of non-resolution of the dispute and the applicant approached the Labour Court about the allegations of harassment enumerating as many as 11 complaints.

Labour Court findings

In its determination of the alleged harassment, the Labour Court found that section 6(3) of the EEA did not elucidate the concept of harassment. Consequently, the court turned its attention to the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (COP), as well as other relevant legal precedents, including the case of Moos v Makgoba [2022] JOL 54225 (GP). In the Moos matter, the High Court found that any subjective interpretation of the concept of harassment could not be sustained as it would leave the scope “too wide” and courts would be “inundated with harassment claims” where even the slightest conduct could be subjectively interpreted as harassment.

Upon a comprehensive review, the Labour Court concluded that after applying an objective standard, the applicant may have felt offended, or experienced unhappiness and distress as a result of the actions taken by DJCD. However, it was determined that her circumstances did not meet the threshold required to establish harassment as contemplated within the framework of unfair discrimination under the EEA, read with the provisions of the COP. Furthermore, with regard to the matter of onus, the court deliberated on section 11(2) of the EEA and reached the conclusion that the applicant did not discharge the burden of proof required by that provision.

Finally, the court emphasised that the legislative goals of promoting dignity, equality, and fair labour practices in the workplace are paramount. Consequently, an act of harassment could pose a threat to one or more of these fundamental principles. The Labour Court further expanded on this stating that managerial functions generally do not threaten dignity or equality, nor do they necessarily constitute unfair labour practices. In this instance the alleged actions did not meet the definition of harassment. The Labour Court, after careful consideration, found that the applicant failed to prove the existence of unfair discrimination, leading to a rejection of her claim.

This judgment underscores the Labour Court’s vigilance when addressing workplace harassment complaints. It highlights the potential for employees to misconstrue the distinction between managerial authority and harassment, often due to the grammatical nuances of the term “harassment”. The court reiterated the importance of acknowledging that a court must remain cognisant of the idiosyncrasies and heightened sensitivities of individual employees, but this does not automatically amount to harassment.

Written by Fiona Leppan, Director, Kgodisho Phashe, Associate and Tyler Lillienfeldt, Candidate Attorney at Cliffe Dekker Hofmeyr