Section 6(1) of the Employment Equity Act ("EEA") prohibits unfair discrimination on various grounds, including what is termed an "arbitrary ground". In addition, it states that harassment on one of the grounds mentioned in section 6(1) may constitute unfair discrimination. In its recent decision in La Foy v Department of Justice and Constitutional Development and Others, the Labour Court considered whether the conduct complained of constituted harassment, and if so, whether this was based on an arbitrary ground.
Facts
Dr Gabriella La Foy was employed as the Deputy Director-General: Constitutional Development at the Department of Justice Constitutional Development and Correctional Services ("the Department"). She referred a dispute in terms of the EEA to the Labour Court, contending that the Department had subjected her to unfair discrimination in the form of harassment on arbitrary grounds.
Dr La Foy complained that various acts by the Department amounted to harassment, including the Department:
- failing to provide adequate administrative support and resources;
- removing some of her work functions and reportees;
- subjecting her to selective disciplinary and administrative sanctions without an objective cause;
- demoting her, and;
- failing to consider grievances lodged by her.
Meaning of harassment
In evaluating the meaning of harassment, the court referred to the Code of Good Practice on Prevention and Evaluation of Harassment in the Workplace ("Code"), which came into force in March 2022. Whilst the court recognised that the Code was introduced well after the incidents complained of had occurred, it noted that it codifies the general understanding of "harassment".
The court drew a distinction between the exercise of managerial powers and harassment. It stated as follows: "Objectively judged, the complaints raised by La Foy amount to unpleasant consequences of the exercise of management functions. Unpleasant as they may have been to La Foy, they do not cause any demonstrable harm for them to cumulatively amount to a harassment that amounts to an unfair discrimination."
The court further commented that courts and forums must exercise care when complaints of work-related harassment are considered and should be "alive to the idiosyncrasies and over-sensitivities of individual employees".
Arbitrary ground and the burden of proof
Since Dr La Foy had alleged that the discrimination (in the form of harassment) was based on an arbitrary ground, she had to prove, on a balance of probabilities, that:
- the conduct complained of was not rational (i.e. it was not based on logical reasons or clear thinking);
- the conduct complained of amounted to discrimination; and
- the discrimination was unfair.
The term "arbitrary ground" is not defined, and it has been left to the labour courts to give it meaning. In this decision, the court accepted and applied the test formulated in previous decisions to the effect that a differentiation between individuals will be considered arbitrary if it is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner. It further commented that for conduct to be "arbitrary", it must not be supported by work-related reasons or systems, but should be based on random choice or personal whim.
The court considered in some detail all the acts of harassment that Dr La Foy alleged constituted harassment. and found that there had been no harassment. The court emphasised that the burden placed on an employee who alleges unfair discrimination on an arbitrary ground is an onerous one.
With reference to case law, the court reiterated that, when considering whether the conduct complained about constitutes harassment, the test is one of objectiveness. This means that the employer should assess the conduct on an objective basis from the perspective of the person who alleges the harassment. The main focus is on the impact of the conduct by referring to the "reasonable person" test.
The court emphasised that, whilst Dr La Foy may have been offended, unhappy or saddened by the actions of the Department, she was not harassed within the meaning of unfair discrimination contemplated in the EEA, considering the actions that occurred in a work environment and when applying the objective test. The court also criticised Dr La Foy's failure to explain why the alleged harassment amounted to unfair discrimination. An employee claiming harassment must do more than merely make a bald allegation and must clearly set out why the alleged harassment amounts to unfair discrimination. Dr La Foy did not do so.
Key takeaways
This case emphasises that claims for unfair discrimination, and particularly alleged unfair discrimination on an arbitrary ground, are challenging to sustain without a thorough understanding of what is required to be proved legally, as well as from an evidentiary perspective. Mere over-sensitivity or offence on the part of an employee (particularly when being managed) will not necessarily meet the legal threshold required to sustain a harassment claim; such claims are, accordingly, not merely there for the taking.
Reviewed by Peter le Roux, an Executive Consultant in ENS' Employment Practice.
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