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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.
November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?