Employment law update – Interdicting a recruitment process and legal costs

March 1st, 2022
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In Masupha v Member of the Executive Council for Gauteng Provincial Treasury and Another [2022] 1 BLLR 80 (LC) an employee lodged a grievance on the basis that she alleged that she had a reasonable expectation of being appointed as a permanent employee in the position of Director: Performance Audit and her contract had not been renewed, nor was she offered a permanent position. In this regard, the employee alleged that in 2015 she had attended an interview for the position of Director: Performance Audit and had been advised that if she performed well during the five-year fixed-term contract there would be no reason why her contract would not be renewed beyond 31 December 2020.

In addition, during 2018 the Premier of Gauteng advised that going forward Senior Management Service employees should be engaged as permanent employees as opposed to on fixed-term contracts. Three of her colleagues were then subsequently converted from fixed-term employment contracts to permanent contracts with no recruitment process being followed, but the employee remained engaged on a fixed-term contract. Her fixed-term contract was, however, subsequently extended until 31 December 2021. In July 2021 her position was advertised on a permanent basis. The employee applied for this position but simultaneously sought an undertaking from the employer that the recruitment process be put on hold as she had a reasonable expectation of being employed on a permanent basis in that position. The employer did not give such an undertaking and in approximately August 2021 the employee approached the Labour Court (LC) on an urgent basis for an order restraining the employer from conducting the recruitment process and from interviewing candidates for the position of Director: Performance Audit until the grievance was concluded.

The LC found that the recruitment process is distinguishable from the grievance process. Furthermore, it was held that the relief could not be granted as there was no legitimate grievance pending as she was not automatically entitled to employment on a permanent basis in the position of Director: Performance Audit. Her relief would instead be to institute an unfair dismissal claim on the basis that she had a reasonable expectation of renewal, but her contract was not renewed, or she had a reasonable expectation of continued employment on an indefinite basis. The court also remarked that the employee would be prejudiced by interdicting the recruitment process as she had applied for the position and may be appointed as part of the interview process. The LC found that the employee failed to demonstrate a reasonable apprehension of irreparable harm to the alleged clear right. It was accordingly held that there was no basis to interdict the recruitment process and the application was dismissed.

As regards costs, the LC followed the default position and did not order costs as it was of the view that the awarding of costs in the circumstances may amount to an error of law and a misdirection. In this regard, reference was made to the Constitutional Court (CC) decision in Union for Police Security and Corrections Organisation v South African Custodial Management (Pty) Ltd and Others [2021] 12 BLLR 1173 (CC) in which the ordinary position in the Labour Relations Act 66 of 1995 (LRA) that costs follow the results was overridden by a principle of ‘law and fairness’. In this regard, the CC prescribed that a principle of fairness must be applied when making costs orders in labour matters. This means that in the labour context the judicial exercise of a court’s discretion to award costs requires the court to –

  • give reasons for making a costs order and account for the departure from the default position that costs should not be ordered; and
  • apply its mind to the dictates of only the fairness standard in s 162 of the LRA.

Vicarious liability for sexual harassment in the workplace

In National Union of Metalworkers of South Africa and Another v Passenger Rail Agency of South Africa [2022] 1 BLLR 90 (LC) the employee claimed damages from her employer in terms of s 60 of the Employment Equity Act 55 of 1998 (EEA) for alleged sexual harassment. The employee alleged that she had been sexually harassed by two managers and had resigned as a result and then withdrawn her resignation. She lodged a formal grievance in about 2016 dating back to conduct that had arisen in December 2013. The employer appointed a manager to investigate the matter, but the employee objected on the basis that she did not trust the manager. An external law firm was then appointed to conduct the investigation, but the employee also refused to co-operate. She then sought damages from the employer.

The Labour Court (LC) found that
s 60 of the EEA was a codification of the common law principle of vicarious liability and to succeed in such a claim sexual harassment would need to have taken place. It was found that sexual harassment had taken place in the circumstances as the onus was on the employer to show that sexual harassment did not take place and the employer did not discharge that onus. In this case, the employee was subjected to acts of harassment by her superior during a work excursion. She also gave evidence that she had been punished as a result of not adhering to sexual advances in that internal transfers happened to her, and she was not appropriately remunerated.

The LC concluded that s 11 of the EEA does not apply in a claim under s 60 and that the onus rests on the employee to prove that the employer was liable. The employee, therefore, needs to satisfy the following –

  • that the sexual harassment took place;
  • it was reported immediately;
  • the alleged contravention needs to be proven by the employee; and
  • the employer must have failed to take the necessary steps to protect the employee.

If the employee proves the four elements referred to above, then there is a deeming order of liability.

To avoid this deemed liability, the employer must demonstrate that it took adequate steps to protect the employee. The LC held that employers are required to protect employees from harm in the workplace, but the court acknowledged that it was practically impossible for the employer to ensure that all laws are adhered to by employees and the only practical steps that could be taken by employers to ensure that employees do not contravene the law is to adopt appropriate policies such as a sexual harassment policy. Therefore, the employer was required to remind employees not to commit any form of harassment and the employer had discharged this obligation.

The employer must also be aware that the employees committed sexual harassment to be vicariously liable. This means that the sexual harassment must be brought to the attention of the employer as soon as possible. The LC also noted further that the EEA requires the aggrieved employee to ‘immediately’ bring the alleged harassment to the employer’s attention and it is this element that the employee fell short on. In this case, the employee had waited two years to bring it to the employer’s attention and when she did, she was not co-operative. The court, therefore, found that the second element of reporting the conduct immediately was not satisfied. In regard to who the sexual harassment should be reported to, the LC found that the reporting must be to an employer through the mechanism in its adopted policy.

The application was dismissed.

Monique Jefferson BA (Wits) LLB (Rhodes) is a legal practitioner at DLA Piper in Johannesburg.

This article was first published in De Rebus in 2022 (March) DR 32.

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