Article 37/2025

The scenario is as follows:

• an employer questioned a medical certificate of an employee and held the viewpoint that it did not have an obligation to pay the employee during the period of sick leave, seeing that the certificate did not state that the employee was unable to work for the duration of the absence on account of sickness or injury
• the said employer withheld the approval for annual leave of the said employee
• the said employer subjected the employee to disciplinary action short of dismissal and the employee perceived this to amount to, inter alia, demotion
• the said employer instituted forensic investigations against the said employee

Does the above conduct amount to harassment in terms of s6(3) of the Employment Equity Act 55 of 1998 (EEA) and item 4 of the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (the Code), when unfair discrimination is alleged on an arbitrary ground?

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Moshoana J, in La Foy v Department of Justice and Constitutional Development and Others (2023) 34 SALLR 360 (LC), approached the above issues as follows:

1. In terms of s6(3) of the EEA, harassment is a form of unfair discrimination and prohibited ito s6(1) of the EEA – however, the EEA does not contain any further guidance as to what constituted harassment.
2. As to what constitutes harassment and as to what constitutes a hostile working environment, guidance is to be sought from the Code.
3. In terms of item 4.1 of the Code, harassment generally amounts to:
   1. unwarranted conduct impairing dignity
   2. creating a hostile/intimidating work environment or is calculated to, or has the effect of, inducing submission by actual/threatened adverse consequences and
   3. ‒ related to one or more grounds as contained in s6(3) of the EEA
4. From the above, it is apparent that harassment generally is directly linked to a hostile working environment and, in this regard, such environment is defined in item 4.6 of the Code as follows:
   1. conduct on a prohibited ground that impacts dignity
   2. e g that has a negative impact on the employee’s ability to work or personal well-being
   3. e g such hostile work environment can be created by the conduct of persons in authority or, alternatively, the conduct of other employees
5. With reference to the allegations made by the employee, the LC found that it was possible that the work conduct she alleged related to the following conduct in terms of item 4.7.5 of the Code:
   1. conduct which humiliates or demeans such employee
   2. conduct which sabotages or impedes the performance of work
   3. conduct that ostracises or excludes the employee from work or work- related activities
   4. the use of disciplinary sanctions without objective cause, explanation or efforts to problem solving
   5. the abuse or selective use of disciplinary proceedings
   6. demotion without justification
6. However, in order to determine whether the above potential subjective hurt constitutes harassment, an objective evaluation of the subjective hurt felt by the employee must be undertaken.
7. When objectively evaluating the above subjective hurt, what has to be investigated, firstly, is whether or not the employer adopted the approach that led to the alleged subjective hurt in the exercise of its managerial powers – in this regard, it is to be appreciated that the conduct of the employee is at all times subject to the supervision, direction, control and interference by the employer in the exercise of its managerial powers.
8. Secondly, what has also to be investigated is whether or not the alleged subjective hurt, when objectively evaluated, amounts to harassment – in this regard, the onus is on the complainant and, in terms of s11(2) of the EEA (seeing that the alleged unfair discrimination is on an arbitrary ground), such complainant must prove:
   1. irrational conduct on the part of the employer
   2. discrimination and
   3. unfair discrimination
9. The classification between listed and arbitrary grounds of discrimination only really affect the onus – whether or not s11(1) or s11(2) of the EEA is applicable.
10. If the discrimination is on an arbitrary ground, then it has to be established, in terms of Harksen v Lane NO and Others 1998 (1) SA 300 (CC) and Ndudula and Others v Metrorail PRASA (Western Cape) (2017) 38 ILJ 2565 (LC), whether an impairment of human dignity took place, or, alternatively, whether such ground adversely affects the employee in a comparably similar manner as the listed grounds.
11. The LC in casu found, in short, that the conduct complained of by the employee was executed by the employer in the exercise of its managerial powers and that such conduct did not amount to harassment in the sense that it did not impair the human dignity of the employee, or, alternatively, did not adversely affect the employee in a comparably similar manner as the listed grounds.