A recent judgment by the South African Labour Court has demonstrated the consequences of an employer's failure to meet its obligations in cases involving unfair discrimination allegations.

The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (the "Code"), recognises different forms of harassment as unfair discrimination in terms of the Employment Equity Act, 1998 ("EEA"). The Code outlines employers' obligations in cases involving harassment allegations.

The Labour Court recently considered the Code in Solidarity obo Oosthuizen v South African Police Service, where it had to consider whether the South African Police Service ("SAPS") was vicariously liable for the racial abuse Col. Oosthuizen suffered at the hands of her direct subordinates, Warrant Officers ("WOs") Tikoe and Mphana.

WOs Tikoe and Mphana had accused Col. Oosthuizen of referring to them with a racial slur after she had taken corrective action against them related to their absenteeism. Col. Oosthuizen reported the incident to the Station Commander, who ordered an investigation and recommended the institution of disciplinary action against the WOs. The Station Commander further requested that the WOs be transferred pending the investigations but this was not implemented.

Both sides then lodged grievances against each other, and an investigation was subsequently launched by SAPS to look into the matter. Following various investigations by the SAPS officials, disciplinary action was recommended against both WOs.

A few days later, Col. Oosthuizen was approached by an intern at the SAPS, who informed her that she overheard the WOs conspiring to falsely accuse her of racial discrimination. Col. Oosthuizen lodged a grievance requesting that disciplinary proceedings be instituted against the WOs. The SAPS did not institute any disciplinary action against the WOs but, instead, transferred Col. Oosthuizen pending the finalisation of the disciplinary action that was instituted against her.

Another investigation report was issued by Capt. Morris, who concluded that the case against the WOs was serious and that they be charged accordingly. The recommendation was not implemented by the SAPS Provincial Commissioner. Col. Oosthuizen later received a notice that a decision had been taken to institute disciplinary action against her for using the racial slur . She was, however, acquitted on all charges during the disciplinary hearing.

A year after the incident, the WOs were ultimately charged. WO Mphana was found not guilty on the basis that there were no statements that corroborated and proved that he committed the misconduct. On the other hand, WO Tikoe pleaded guilty and was given a sanction of a written warning and one-day leave without pay. Col. Oosthuizen was never called as a witness during the two WOs disciplinary proceedings.

It was further brought to the Court's attention that the WOs were founding guilty in the Regional Court of the North West Regional Division of, amongst others, assault and crimen injuria. They were consequently charged internally and subsequently dismissed.

Labour Court's decision

The Court had to decide:

  • whether the conduct of the WOs in harassing and falsely accusing Col. Oosthuizen of racism constituted unfair discrimination;
  • whether the SAPS had failed to act in accordance with section 60 of the EEA and was vicariously liable; and
  • what relief should be granted in the event that the SAPS is found to have contravened the EEA.

The Court noted that the investigation reports that had recommended disciplinary action against the WOs were initially abandoned by the SAPS.

The Court found that despite the SAPS' insistence that it took all the necessary steps to address the racial harassment, this was not backed up by evidence. Instead, what transpired is that the SAPS did everything in its power to protect the perpetrators of racial harassment.

Importantly, the Court found that the SAPS was oblivious to its statutory duties in terms of the section 60 of the EEA. In this regard, the Court found that the SAPS:

  • failed to consult all relevant parties;
  • did not take the necessary steps to eliminate the racial harassment. Instead, it acted in a partial manner by protecting the perpetrators at the expense of the victim; and
  • did not do all that was reasonably practicable to ensure that the WOs would not racially harass Col. Oosthuizen.

As a result, the Court found that Col. Oosthuizen was entitled to compensation for the negative impact on her dignity, especially since the SAPS' manipulated the WO's disciplinary hearing and outcome. The SAPS was ordered to pay Col. Oosthuizen ZAR300 000 and tender a written apology to Col. Oosthuizen for the indignity she had suffered. The SAPS was further ordered to pay costs.

Comment

This decision is significant as it is the first to consider the Code, which recognises that racial, ethnic, and social origin harassment constitute unfair discrimination under the EEA. This distinguishes it from its predecessor, the 2005 Code, which only recognised sexual harassment.

Employers should ensure that they understand the broadened scope and application of the Code to minimise the risk of adverse findings of vicarious liability in terms of section 60 of the EEA. It is also important for employers to ensure that they have a policy dealing with harassment in the workplace. Courts will likely consider this when determining whether an employer took the necessary steps to eliminate harassment in the workplace.

Reviewed by Peter le Roux, an Executive Consultant in ENSafrica's Employment department.

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