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With the advent of constitutional democracy, the South African legal system conforms to the Constitution. Section 2 thereof is important. In terms of s 1(c) the country is founded on the ‘supremacy of the Constitution and the rule of law’. Section 7(1) says the Bill of Rights is a cornerstone of democracy in South Africa. The Bill of Rights enshrines the rights of all people and affirms the democratic values of human dignity, equality and freedom.
Pertinent to this article, s 9(4) states: ‘No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination’ and s 9(5) states: ‘Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.’ The Constitution advances that only unfair discrimination is prohibited. Absent from the listed grounds is harassment. A prima facie view may be held that harassment is not prohibited. The Cambridge Dictionary defines ‘harassment’ as ‘behaviour that annoys or upsets someone’ (https://dictionary.cambridge.org, accessed 2-7-2024). The focal point here is harassment at the workplace. An analysis is required to establish the extent to which the South African workforce is protected from harassment. National legislation prohibiting discrimination at workplace shall be considered.
Section 23(1) of the Constitution states ‘everyone has the right to fair labour practices’. It must be stated that harassment at the workplace does not necessarily amount to unfair labour practices. The Constitution does not define fair labour practice. A piece of legislation was assented to, namely, the Employment Equity Act 55 of 1998 (EEA). Among others, the preamble of the EEA states its purpose as –
The EEA exists to eliminate unfair discrimination in employment. Section 2(a) thereof provides that its purpose is to achieve equity in the workplace by promoting equal opportunity and fair treatment in employment through elimination of unfair discrimination. It aims to promote the constitutional right of equality. Clearly workers are insulated from unfair discrimination in order to promote the fundamental right of equality. Section 7(3) of the Constitution says rights in the Bill of Rights are subject to the limitations contained or referred to in s 36, or elsewhere in the Bill. Protection is on unfair discrimination and not fair discrimination (see Harksen v Lane NO and Others 1998 (1) SA 300 (CC) where the court felicitously stated that ‘the determination as to whether differentiation amounts to unfair discrimination … requires a two stage analysis. Firstly, the question arises whether the differentiation amounts to “discrimination” and, if it does, whether, secondly, it amounts to “unfair discrimination”. … That there can be instances of discrimination which do not amount to unfair discrimination is evident from the fact that even in cases of discrimination on the grounds specified … which by virtue … are presumed to constitute unfair discrimination, it is possible to rebut the presumption and establish that the discrimination is not unfair.’ Prinsloo v Van der Linde and Another 1997 (3) SA 1012 (CC)). The EEA protects employees from harassment.
The Preamble of the EEA states the EEA aims to give effect to the obligations of the Republic of South Africa as a member of the ILO. Section 231(5) of the Constitution says any international agreement becomes law in the Republic when it is enacted into law by national legislation. Recommendation, 1958 (no 111) defines ‘discrimination’ as ‘any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation’. Section 3(d) of the EEA says the EEA must be interpreted ‘in compliance with the international law obligations of the Republic, in particular those contained in the International Labour Organisation Convention (no 111) concerning Discrimination in Respect of Employment and Occupation.’
The bedrock of the prohibition of unfair discrimination manifests itself in s 5 of the EEA. This section obligates an employer to take steps by eliminating unfair discrimination. An employer is not obligated to eliminate all discriminations but ones that are unfair. In order for an employment policy or practice to be eliminated, it must amount to unfair discrimination and not mere discrimination. An employer may adopt a policy or practice not to appoint employees with past criminal records.
Prima facie, such a practice or policy amounts to distinction, exclusion or preference. However, it must be based on any of the listed grounds in order for it to be prohibited. Section 6(1) of the EEA prohibits discrimination based on all the grounds listed in s 9 of the Constitution with ‘arbitrary ground’ added. The Labour Court, per Meyerowitz AJ, in O’Connor v LexisNexis (Pty) Ltd (2024) 45 ILJ 1287 (LC), in my view, wrongly elevated having a criminal record as a form or ground for unfair discrimination. The judge did so by having regard to s 6(2)(b) of the EEA. Regrettably, the acting judge ignored s 6(1) of the EEA and possibly concluded that failure to appoint a person because of a criminal record amounts to unfair discrimination which may be defended by the inherent job requirements. Regrettably, the first step in line with s 5 read with s 6(1) was completely missed (see Harksen). The first step is to determine whether the conduct in question amounts to discrimination as opposed to differentiation.
Albeit, with regard to harassment, the legislature provides in s 6(3) of the EEA that harassment of an employee is a form of unfair discrimination and is prohibited on anyone, or a combination of grounds of unfair discrimination listed in subs (1). Nowhere in s 6(1) does the legislature elevate having a criminal record as a form of discrimination prohibited on any of the listed grounds.
Section 6(3) does not define harassment. This was recognised in Maphanga v Department of Justice and Constitutional Development [2023] 6 BLLR 530 (LC). Maphanga resorted to the meaning of harassment in law and stated:
‘In law harassment refers to a person acting in a manner that causes the complainant to fear harm. Harm refers to any mental, psychological, physical or economic harm.’
Ultimately Maphanga concluded thus:
‘Based on this definition, it cannot be said that if a superior issues a work instruction, such superior is acting in such a manner that will cause the junior to fear harm.’
In La Foy v Department of Justice and Constitutional Development and Others [2023] 12 BLLR 1275 (LC) (La Foy 2) the court said:
‘In section 6(3) of the EEA, the legislature only informs us that harassment is a form of unfair discrimination. However … unfair discrimination has not been afforded any particular meaning.’
Ultimately, La Foy resorted to the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (the Code) to consider the claim of harassment. Unlike in Maphanga, at the time of La Foy, the Code was published on the same day Maphanga was decided.
Section 54(1)(a) of the EEA empowers the Minister of Employment and Labour on the advice of the Commission for Employment Equity to issue any code of good practice. On 18 March 2022, the Code was published (GN R1890 GG46056/18-3-2022). The Code purports to define harassment. In clause 4.1 it is states: ‘Harassment is generally understood to be –
4.1.1 unwanted conduct, which impairs dignity;
4.1.2 which creates a hostile or intimidating work environment … or is calculated to, or has the effect of, inducing submission by actual or threatened adverse consequences; and
4.1.3 is related to one or more grounds in respect of which discrimination is prohibited in terms of section 6(1) of the EEA.’
The Code usefully provides what harassment includes. For the purpose of this article, clause 4.8 says:
‘Prohibited grounds
4.8.1 Harassment of an employee is prohibited … , if the harassment is related to one or more prohibited grounds.
4.8.2 It may also be possible for a person who has been harassed to establish that the conduct was a result of an arbitrary ground’ (my italics).
It is noteworthy that there are two species of harassment. One is a ‘listed harassment’ and the other an ‘arbitrary harassment’. A listed harassment is one that is related to any of the listed grounds. Section 9 of the Constitution makes no reference to arbitrary grounds, only s 6(1) of the EEA does so. The listed species is one predicated on the grounds in s 9. This specie, is presumed to be unfair. An arbitrary ground is one not based on the grounds contemplated in s 9. In La Foy v Department of Justice and Constitutional Development and Others (2023) 44 ILJ 1733 (LC) (La Foy 1), it was said an action is arbitrary if it is whimsical or based on random choice or personal whim rather than any reason or system.
The question is how to successfully prove harassment as a form of unfair discrimination? Where harassment is grounded on the listed grounds, unfair discrimination is presumed. How the presumption arises is when the discriminated employee
alleges that discrimination took place based on the grounds in section 9. There, an employer must prove that –
Where an employer proves that the alleged discrimination did not take place, cadit quaestio.
Where an arbitrariness is alleged, the complainant must prove that –
La Foy 2 stated that this is a heavy onus. Presumably to alleviate the heaviness, an employee may allege one of the s 9 grounds. However, it is required that credible evidence that the action is based on prohibited grounds must be provided (La Foy 1 and 2). Significantly, in arbitrariness, it was held that the arbitrariness must share commonality with any of the constitutional grounds (Naidoo and Others v Parliament of the Republic of SA (2020) 41 ILJ 1931 (LAC)). The Code provides that the harassment must be one that impairs dignity. This is stronger than a mere feeling of some wrong or loss of some entitlement.
Section 50(2) of the EEA empowers the Labour Court only to make an appropriate order that is just and equitable if it concludes that an employee has been unfairly discriminated against. This includes –
Absent is the power to order reinstatement and or specific performance as a remedy. In O’Connor the Acting Judge ordered specific performance where a decision was made that the employee was subjected to an unfair discrimination. This is legally unsustainable. Appropriately when dealing with unfair discrimination guidance emanates from the Constitution and the EEA. Importantly s 187(1)(f) of the Labour Relations Act 66 of 1995 (LRA) says if the reason for a dismissal is that the employer unfairly discriminated against an employee on any of the s 9 and subs (f) grounds, such a dismissal is automatically unfair. Remedies are provided for in s 193 of the LRA. Requiring an employer to reinstate or re-employ an employee following a finding of unfairness (see s 193(1)(a) and (b)). The LRA remedies do not apply to the EEA.
Judge Graham Nasious Moshoana BProc (UNIN) LLB (Wits) LLM (RAU) is a Judge of the High Court in Pretoria.
This article was first published in De Rebus in 2024 (Aug) DR 38.
