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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

FLYNOTES: LABOUR – Discrimination – Harassment – Existence of discrimination in form of harassment – Falsely being accused by a subordinate of being racist – Arbitrary ground – Conduct of employer on employee’s own version does not qualify as discrimination – Harassment not per se discrimination – Nexus between harassment and discrimination must be shown – Employee failing to prove nexus – Requirements not satisfied – No liability accruing to employer – Absolution granted – Employment Equity Act 55 of 1998, s 6(3).

THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN

 

Reportable

Case no: C 70 / 22

 

In the matter between:

 

SOLIDARITY obo C K[...]	Applicant
and
WESTERN CAPE EDUCATION DEPARTMENT	First Respondent
MINISTER OF THE WESTERN CAPE DEPARTMENT OF EDUCATION	Second Respondent
HEAD OF THE DEPARTMENT OF EDUCATION: WESTERN CAPE	Third Respondent

Heard:  6 and 7 November 2024

Delivered:  22 November 2024

 

This judgment was handed down electronically by circulation to the parties and legal representatives by email. The date and time for hand-down is deemed to be 22 November 2024

 

Summary:    Discrimination – allegation of discrimination on the basis of harassment – s 6(3) of EEA considered – conduct of employer on employee’s own version does not qualify as discrimination – no ground as contemplated by s 6(1) of the EEA substantiated

Discrimination – harassment – principles considered – harassment not per se discrimination – nexus between harassment and discrimination must be shown – employee failing to prove nexus – harassment not based on discrimination

Discrimination – arbitrary ground – principles considered – not all arbitrary conduct constitutes discrimination – Harken v Lane considered – arbitrary conduct in casu failing to satisfy requirements of discrimination

Discrimination – vicarious liability – s 60 of EEA – principles considered – employee failing to even prima facie satisfy requirements of s 60(1) and (2) – no liability accruing to employer

Onus – burden is on complainant replying on an unlisted ground to establish the existence of discrimination – employee failing to discharge such onus even on own pleaded case and evidence presented   

Absolution from the instance – principles stated – applicant failed to make out a case of discrimination on own version as it stands – absolution from the instance granted

JUDGMENT: REASONS

SNYMAN, AJ

 

Introduction

 

[1]  In this instance, the applicant has instituted a claim against the respondents, alleging that the individual applicant has been discriminated against by the respondents, based on harassment, as contemplated by section 6(3) of the Employment Equity Act (EEA)[1]. For ease of reference in this judgment, the applicant union will be referred to as ‘Solidarity’, the individual applicant P[…] K[...] as ‘K[...]’, and the three respondents jointly as ‘the Department’.

 

[2]  The parties exchanged bundles of documents before the trail commenced. In terms of the pre-trial minute, the authenticity of the documents was not disputed, subject to the proviso that where a document is specifically objected to by a party, it must be proved. There was no objection to any of the documents, which documents in the end constituted undisputed evidence before Court. In addition, and in terms of the pre-trial minute concluded between the parties, most of the pertinent facts in this case was agreed to be common cause facts.

 

[3]  At the outset of the proceedings, I enquired from Ms Karolien Van Wyk, the Solidarity representative, exactly what the ground of discrimination was that the applicant parties were relying on, as it was not immediately apparent from the pleadings or documents. She indicated that the case, in essence, was that false accusations of being racist was levelled against K[...] by one of his subordinates, and despite the Department being requested to intervene and decisively deal with the subordinate, the Department failed in its duty in this regard. There was however no contention or case that K[...], who is a white person, was subjected to harassment because he was white. It would therefore appear that the ground relied on was an unlisted arbitrary ground.

 

[4]  I indicated to the parties that despite what was recorded in the pre-trial minute, this was an appropriate instance where the applicant party should commence to lead evidence. This was agreed to by the parties, and K[...] proceeded to present his testimony as the only witness for the applicant. In conducting the cross examination of K[...], the Department’s counsel did little in respect of putting the version of the Department to K[...]. Instead, counsel focussed on establishing that K[...], on his own version, as considered with the undisputed documentary evidence and the content of the pre-trial minute, simply could not establish the existence of discrimination in the form of harassment. After the applicant closed its case, the Department’s counsel applied for absolution from the instance. I heard argument by both parties on this issue, and despite being mindful that a Court should always be careful and circumspect in disposing of a case based on absolution from the instance,[2] I granted the following order on 7 November 2024:

1.    The respondents’ application for absolution from the instance is granted.

2.    Absolution from the instance is granted in respect of all of the claims as contained in the applicant’s statement of claim.

3.    There is no order as to costs.

4.    Written reasons for this order will be handed down on 22 November 2024.

 

[5]  This judgment now constitutes the written reasons for my order, supra, as contemplated by paragraph 4 of the order. Before analysing the evidence presented in Court, I will first summarize the applicable legal principles where it comes to applications for absolution from the instance.

 

Absolution from the instance

 

[6]  It is now trite that the Labour Court has the power to consider and determine applications for absolution from the instance.[3] The test to be applied in considering an application for absolution from the instance was described in Gordon Lloyd Page and Associates v Rivera and Another[4] as follows:

 

‘The test for absolution to be applied by a trial court at the end of a plaintiff's case was formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409G - H in these terms:

‘... (W)hen absolution from the instance is sought at the close of plaintiff's case, the test to be applied is not whether the evidence led by plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff. (Gascoyne v Paul and Hunter 1917 TPD 170 at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307 (T).)’

This implies that a plaintiff has to make out a prima facie case - in the sense that there is evidence relating to all the elements of the claim - to survive absolution because without such evidence no court could find for the plaintiff (Marine and Trade Insurance Co Ltd v Van der Schyff 1972 (1) SA 26 (A) at 37G - 38A; Schmidt Bewysreg 4th ed at 91 - 2). As far as inferences from the evidence are concerned, the inference relied upon by the plaintiff must be a reasonable one, not the only reasonable one (Schmidt at 93) … The court ought not to be concerned with what someone else might think; it should rather be concerned with its own judgment and not that of another 'reasonable' person or court. Having said this, absolution at the end of a plaintiff's case, in the ordinary course of events, will nevertheless be granted sparingly but when the occasion arises, a court should order it in the interests of justice …’

 

[7]  The question that thus must be answered, in casu, is whether the applicant has at least produced sufficient evidence to, on its own case, reasonably establish the prima facie existence of discrimination in the form of harassment, on an unlisted arbitrary ground. This is done by way of considering the case as pleaded by applicant, the undisputed documentary evidence, the common cause facts in the pre-trial minute, and then also the testimony presented by K[...] in Court.[5]

 

[8]  It is important to bear in mind that evidence to be considered is not just the ipse dixit of K[...] when he testified, as it stands. His testimony must still be evaluated to some extent.[6] This would include making some credibility findings, where appropriate. For example, the testimony by a witness may directly contradict an undisputed document, and this would surely detract from the credibility of the testimony. The purpose of the evaluation of the evidence is to decide whether, at the very least, the applicant’s case is one where a reasonable inference can at this stage be drawn from the evidence properly before the Court as a whole.[7] As held in Commercial Stevedoring Agricultural and Allied Workers Union on behalf of Dube and Others v Robertson Abattoir[8]:

 

‘… But that on its own should not detract a court from a proper enquiry, namely whether there was evidence produced by the appellants upon which a court applying its mind reasonably could or might have found a sufficient credible possibility that an automatically unfair dismissal had taken place …’

 

[9]  In deciding any absolution application, the issue of who bears the onus is also of importance.[9] The point is that if the applicant does not bear the onus, then it is hard to say that the applicant is required to make out a prima facie case. Therefore, the consideration of any absolution application is always inextricably linked with the party who bears the onus. As said in Black v John Snow Public Health Group[10]: ‘… It has been said that absolution from the instance can only be granted if the onus rests on the plaintiff and not on the respondent …’.

 

[10]  In the end, the applicant at least had to establish credible evidence that K[...] was discriminated against by the Department on an arbitrary ground based on harassment. But not only that, but the applicant also had to provide credible evidence and a prima facie case that the Department could be held vicariously liable for such discrimination based on the provisions of section 60 of the EEA. The applicant however failed to do the aforesaid, generally speaking, for the reasons comparable to the following dictum in Legal Aid SA v Jansen[11], where the Court said:

 

‘Thus, the respondent did not produce credible evidence, and accordingly has failed to prove, either that the treatment accorded to him by appellant in any way differed from the treatment accorded to other employees, or, more importantly, that the reason for any such alleged differential treatment was his condition of depression. The respondent has not established a credible possibility that his dismissal was automatically unfair. Nor has he shown on a balance of probabilities discrimination on a prohibited ground under the EEA.’

 

[11]  I will now set out the reasons for my conclusion as aforesaid. 

 

Legal principles

 

[12]  Starting with the issue of the onus, the applicant’s pleaded case is important in deciding where the onus lies. The applicant has pleaded that the conduct of the Department is tantamount to unfair discrimination in terms of sections 6(1) and 6(3) of the EEA.[12] As touched on above, the harassment alleged by the applicant to constitute the basis for the unfair discrimination relates to K[...] falsely being accused by a subordinate as being a racist, and the Department having failed to reasonably deal with a complaint raised by K[...] and Solidarity in this regard. Further according to the applicant, the conduct meted out to K[...] by the particular subordinate constituted harassment in general, was arbitrary conduct, and as such constituted discrimination. This was somewhat extended from what had been said in the opening address. Nonetheless, I consider both causes of complaint.

 

[13]  It was apparent from K[...]’s own evidence in Court and the submissions by Solidarity as his representative, that the case of discrimination is not based on a specific listed ground in terms of section 6(1) of the EEA. The reasons for my finding in this regard are dealt with later in this judgment. That means the allegation of discrimination would have to resort under the reference to ‘other arbitrary ground’ in that section. That being the case, section 11(2) clearly determines the issue of the onus, and provides:

 

‘If unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on a balance of probabilities, that-

(a)   the conduct complained of is not rational;

(b)   the conduct complained of amounts to discrimination; and

(c)   the discrimination is unfair.’

 

There can thus be no doubt that the applicant bears the onus in casu,[13] and it would thus be competent to visit it with a finding of absolution from the instance, should it be appropriate to do so.

 

[14]  Turning next to the provisions of the EEA relied on by the applicant, it must immediately be said that section 6(3) of the EEA cannot find application in this case. The simple reason for this is that section 6(3) only applies where the applicant instituting the claim under that section relies on a listed ground in section 6(1). As sated above, the applicant does not rely on a listed ground. Already in this respect, the applicant’s case would face considerable difficulty in succeeding.[14]

 

[15]  Nonetheless, the applicant has specifically relied on an arbitrary ground, which is provided for in section 6(1), so perhaps it can be said that section 6(3) can be invoked. I will thus consider section 6(3) as being applicable. Reading ‘arbitrary ground’ in section 6(1) with ‘harassment’ in section 6(3), there are two concepts that must be identified and considered, being what constitutes ‘arbitrary conduct’ and what would be ‘harassment’. This I turn to next.

 

[16]  As to what constitutes arbitrary conduct for the purposes of establishing discrimination, a definitive answer has been provided in the judgment of Harksen v Lane NO and Others.[15] in Harksen[16], an arbitrary ground for the purposes of establishing discrimination was described to be a ground: ‘… based on attributes and characteristics which have the potential to impair fundamental human dignity of persons as human beings or to affect them adversely in a comparable serious manner …’ In AB and Another v Minister of Social Development (Centre for Child Law as amicus curiae)[17] the Court applied the above dictum in Harksen as follows: ‘… The differentiation will amount to discrimination if the impugned provision authorises unequal treatment of people based on certain attributes and characteristics attaching to them …’.

 

[17]  The aforesaid approach in Harksen has also been consistently applied in the Labour Court and Labour Appeal Court. In Naidoo and Others v Parliament of the Republic of SA[18] the Court explained:

 

‘… the word ‘arbitrary’ is not a synonym for the word ‘capricious’. The injunction in s 6(1) is to outlaw, not ‘arbitrariness’, but rather to outlaw unfair discrimination that is rooted in ‘another’ arbitrary ground (the syntax of ‘any other’ cannot be understood as otherwise than looking back at what has been stipulated in the text that precedes it). Capriciousness, by definition, is bereft of a rationale, but unfair discrimination on a ‘ground’ must have a rationale, albeit one that is proscribed. The glue that holds the listed grounds together is the grundnorm of human dignity. The authors express this view, with which I agree:

‘Discrimination is about infringement of dignity (or a comparably serious harm), about an identifiable and unacceptable ground and about the link (directly or indirectly) between that ground and the differentiation. Should a ground not be listed, it should meet the well-established test for unlisted grounds: it must have the potential to impair the fundamental human dignity of a person (or have a comparably serious effect) and has to show a relationship with the listed grounds.’ …’[19]

 

And in Pioneer Foods (Pty) Ltd v Workers Against Regression and Others[20] the Court said:

 

‘In short, if the differentiation is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground 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 in a comparably serious manner …’

 

[18]  Accordingly, discrimination contemplated in this context means that it must be shown that the dignitas or right of equality of the complainant as a person, or that person’s personal attributes and characteristics, have been impaired or prejudiced.  To describe it simply, the arbitrariness must be something akin or related to the kind of listed grounds in Section 6(1) of the EEA.  This was made clear in Naidoo supra[21] where the Court, having referred the principles set out in Harksen, said that: ‘… This formulation, establishing a need to link the alleged unlisted ground to the listed grounds by reference to the core value of human dignity, has been endorsed several times. It is the foundation of the line of authority that supports the narrow compass interpretation of s 6(1) of EEA …’. Similarly, and as said in Stojce v University of KwaZulu-Natal and Another:[22] ‘The Constitutional Court and the Labour Court have considered unlisted grounds as acts of discrimination if they are analogous to the listed grounds …’. Examples of the kind of ‘arbitrary ground’ not specifically listed which would be seen to be discrimination, can be found in New Way Motor and Diesel Engineering (Pty) Ltd v Marsland[23] which concerned mental illness based on depression and Smith v Kit Kat Group (Pty) Ltd[24] which concerned a physical disfigurement as a result of attempted suicide.

 

[19]  Further, it has been consistently said that complainant parties must properly identify the unlisted arbitrary ground relied on, up front, and in the pleadings.[25]  As succinctly held in National Union of Metalworkers of SA and Others v Gabriels (Pty) Ltd[26]:

 

 ‘… What is therefore required, is that a complainant must clearly identify the ground relied upon and illustrate that it shares the common trend of listed grounds, namely that 'it is based on attributes or characteristics which have the potential to impair the fundamental dignity of persons as human beings, or to affect them adversely in a comparable manner’ …’.

 

[20]  I will next consider what would constitute ‘harassment’ for the purposes of discrimination. This issue has received quite some attention in judgments of this Court and the Labour Appeal Court, but mostly in the context of sexual harassment. Nonetheless, the basic principles remain the same. The current appropriate point of departure in deciding this would be to have regard to the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace[27], wherein the following is recorded in clause 4:

 

‘4.1 The term “harassment” is not defined in the EEA. 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 for one or more employees 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.'

 

[21]  Whilst it is true that the publication of this Code took place only after the events giving rise to the case in casu, the principles set out therein is more or less an embodiment of the legal principles that had developed over the years in deciding whether particular conduct constituted harassment.[28] In short, it is an apposite summary of what needs to be considered in deciding whether actionable harassment exists in a particular case.[29]

 

Analysis

 

[22]  Turning the facts in casu, it is clear that the applicant’s entire cause of complaint arose from what can only be described as an extremely rocky relationship between K[...], who was employed as a farm manager by the Department,[30] and one of his subordinates, being Albertus Engelbrecht (Engelbrecht). K[...] was a white person, whilst Engelbrecht was a coloured person. The documentary evidence shows a strained relationship between them, with each of them lodging several grievances against the other. To put it in context, Engelbrecht lodged grievances against K[...] on 5 March 2018, 28 March and 5 April 2019, 14 May 2020, 15 and 20 July 2020, and 7 December 2020. In turn, K[...] lodged grievances against Engelbrecht on 15 July 2020, and 11 and 31 August 2020. What is however significant in casu is that no disciplinary action of any kind was ever taken against K[...] as a result of the grievances lodged by Engelbrecht against him, whilst in the case of every grievance lodged by K[...] against Engelbrecht, disciplinary action was taken against Engelbrecht by the Department.

 

[23]  The applicant’s pleaded case is founded on four individual incidents, which occurred between Engelbrecht and K[...]. As touched on above, these incidents, and what happened as a result of the same, were largely agreed to be common cause in the pre-trial minute.

 

[24]  The first incident relates to instances in August and September 2018 where Engelbrecht refused to carry out work instructions given to him by K[...], and behaved in an insolent manner towards him. Following a complaint by K[...] about this, Engelbrecht was subjected to a disciplinary hearing, which concluded on 15 March 2019. He was found guilty of insubordination and insolence charges brought against him, was issued with a final written warning and referred to the Department’s Wellness program to deal with anger management.

 

[25]  The next incident took place on 17 December 2019, when Engelbrecht grabbed K[...] by the throat and choked him. As a result, Engelbrecht was charged with assault. A disciplinary hearing was held on 17 March 2020, in which a number of witnesses, including K[...] and Engelbrecht, testified before an independent chairperson, one Liesl Adams (Adams). In a written finding dated 7 April 2020, Adams accepted that K[...] had been assaulted when Engelbrecht grabbed him by the throat, but further held that K[...] had exaggerated in the incident. But it follows that K[...] was found guilty of assault. In dealing with the issue of an appropriate sanction for the assault, and in a further written finding dated 2 June 2020, Adams held that K[...] had to some extent provoked the conduct due to unacceptable conduct on his part. Adams concluded that although dismissal would in the ordinary course have been an appropriate sanction to meet out to Engelbrecht, the provocation and conduct committed by K[...], mitigated against it. She recommended a final written warning to be issued to Engelbrecht, and recommended intervention by the Department to attempt to salvage the relationship between K[...] and Engelbrecht. K[...] never challenged this finding or expressed his dissatisfaction about the outcome.

 

[26]  The next incident followed shortly after Engelbrecht had been issued with the final written warning. On 9 July 2020, there was once again an altercation between K[...] and Engelbrecht. On this occasion, K[...] alleged that Engelbrecht falsely accused him of being a racist when K[...] requested employees to keep their dogs contained as a result of an incident where two dogs had killed a cat. According to K[...], Engelbrecht shouted at him that he (K[...]) was a racist, because the white persons’ dogs could walk anywhere but the employees’ dogs could not. In addition, and the course of this altercation, Engelbrecht once again conducted himself in a grossly insolent manner towards K[...]. This incident resulted in K[...] lodging a formal grievance against Engelbrecht on 15 July 2020 (one of the grievances referred to above), in which he required that disciplinary action be taken against Engelbrecht.

 

[27]  Engelbrecht countered with his own grievance against K[...], with regard to his version of the events on 9 July 2020. In this grievance, he contended that K[...] made a racist comment towards him, when K[...] supposedly said that his dog looked better than Engelbrecht. Although Engelbrecht described this as a racist comment, it clearly was not, as this statement had nothing to do with race. This grievance by Engelbrecht was lodged on 20 July 2020.

 

[28]  As a result of the altercation between Engelbrecht and K[...] on 9 July 2020, which came to the attention of the Department, it was decided that intervention was required. A meeting was convened K[...], Engelbrecht, and Messrs Joubert and Kluyts from the Department, on 13 July 2020. The purpose of this meeting was to attempt to amicably resolve the dispute between them. K[...], in his evidence, described this as attempted mediation, in which he willingly participated to try and resolve the matter. K[...] further testified that Engelbrecht however had very little inclination to amicably resolve the matter, and mediation failed. K[...] then insisted that disciplinary action be taken against Engelbrecht. He confirmed this in an e-mail to Joubert and Kluyts on 15 July 2020, and in his grievance of the same date.

 

[29]  It is also at this point that Solidarity entered the picture. With specific reference to the events of 9 July 2020, Solidarity sent an e-mail to Joubert and Kluyts on 15 July 2020, expressing their concern about the conduct of Engelbrecht towards their member (K[...]), and asked what the Department intended to do about it, and how it intended to deal with the grievance lodged by K[...]. The Department answered on 17 July 2020 that the matter had been handed to labour relations for attention.  

 

[30]  Next, and on 11 August 2020, K[...] lodged a further grievance against Engelbrecht, as a result of further insubordinate and grossly insolent behaviour towards him, perpetrated in the context of K[...] issuing Engelbrecht with work instructions. According to K[...], Engelbrecht directly refused to carry out work instructions to work with a spade given to him and in fact stood right up against him in a threatening manner and behaved most insolently.

 

[31]  This event and grievance by K[...] prompted another e-mail by Solidarity to Joubert on 17 August 2020. Reference was made in this e-mail to the failed mediation meeting of 13 July 2020, the poor disciplinary record of Engelbrecht, the criminal case against Engelbrecht for the previous assault, the false allegations of racism against K[...], Engelbrecht’s continued insubordination and threatening behaviour towards K[...], the fact that Solidarity had allegedly not received proper feedback from the Department about its interventions, and that no disciplinary action has been taken against Engelbrecht. Reference was further made to the events of 11 August 2020 and K[...]’s grievance relating thereto. Solidarity expressed their concern for K[...]’s safety and his exposure to what was according to Solidarity an unfair labour practice. It was recorded that the failure to take urgent disciplinary action against Engelbrecht relating to all these complaints would be seen as the Department condoning this behaviour.

 

[32]  The final grievance lodged by K[...] against Engelbrecht on 31 August 2020, related to two incidents of disrespectful conduct on the part of Engelbrecht towards him on 25 and 26 August 2020, in the course of which Engelbrecht shouted and screamed at him, and acted in a confrontational manner. Again, K[...] requested that disciplinary action be taken against Engelbrecht. Solidarity also entered the fray on 31 August 2020, by way of an e-mail to Joubert and Kluyts, lamenting the Department’s failure to have taken action against Engelbrecht, and inter alia demanding that immediate action be taken.

 

[33]  The Department subsequently obliged with the disciplinary action against Engelbrecht that Solidarity and K[...] had requested be taken. Engelbrecht was presented with a charge sheet in September 2020 terms of which he faced five charges (and two sub charges). In particular, one of the charges were that Engelbrecht was charged with falsely accusing K[...] of being a racist. The other charges all related to the incidents as set out in the grievances lodged by K[...].

 

[34]  The disciplinary hearing commenced on 1 October 2020 and took place over several days in October 2020, concluding on 31 October 2020. The hearing again presided over by an independent chairperson, being Aesha Jacobs (Jacobs). In this disciplinary hearing, several witnesses, including K[...] and Engelbrecht, testified. In a comprehensive written finding, in which Jacobs dealt with all the evidence presented in quite some detail, she provided a comprehensive exposition of such testimony. She found Engelbrecht not guilty of the charge relating to the false allegation of racism, on the basis that there was insufficient evidence to substantiate the same. Jacobs however did find Engelbrecht guilty of all the other charges. At the conclusion of her finding, Jacobs made some recommendations, which included that K[...] be charged for not following disciplinary procedure,[31] subjected to progressive disciplinary training, and counselled on how to manage staff in a firm and positive manner.  What remained was for Jacobs to decide on an appropriate sanction for Engelbrecht.

 

[35]  However, and despite this continuing and pending disciplinary proceedings, it did not deter Engelbrecht from his unacceptable behaviour. On 11 November 2020, Engelbrecht committed what appears to be a serious assault on K[...]. Suffice it to say, the Department deemed it prudent to immediately suspend Engelbrecht, which it did on 12 November 2020. The Department also instituted criminal proceedings against Engelbrecht as a result of the assault, which proceedings are still pending. On 30 November 2020, Engelbrecht was charged with assaulting K[...], which disciplinary hearing was due to take place on 8 December 2020.

 

[36]  However, and in the interim, a hearing with regard to an appropriate sanction to be meted out to Engebrecht following the October 2020 disciplinary proceedings took place before Jacobs on 3 December 2020. Pursuant to such hearing, and in a sanction finding dated 7 December 2020, Jacobs recommended a sanction of the immediate dismissal of Engelbrecht. In deciding on this sanction, she inter alia had regard to all the previous disciplining of Engelbrecht, and the fact that despite all the previous attempts to rehabilitate Engelbrecht, he appeared not be capable of rehabilitation. Engelbrecht was accordingly dismissed on 7 December 2020. He however appealed, and his appeal was declined on 13 January 2021. Engelbrecht was therefore finally dismissed on 13 January 2021. During this time, and following the assault on him on 11 November 2020, K[...] was on sick leave and remained on sick leave until his departure from employment at the Department end of March 2021.

 

[37]  There was therefore no further interaction between K[...] and Engelbrecht after 11 November 2020. Despite this, and in a referral dated 25 February 2021, Solidarity, acting on behalf of K[...], referred an unfair discrimination dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).[32] In this referral, it is indicated that the dispute arose on 11 November 2020, and that the basis of the dispute was that K[...] was subjected to ‘ongoing harassment based on his race’ by a fellow employee (Engelbrecht). It was further stated that the Department had failed to take ‘swift’ action to protect K[...] from discriminatory conduct. It appears that the date of 11 November 2020 corresponds with the assault by Engelbrecht on K[...], which was obviously viewed as the final straw.

 

[38]  On 26 February 2021, K[...] sent an e-mail to the Department, asking for the outcome of the disciplinary proceedings against Engelbrecht initiated as a result of his grievances, and in which he was a witness. He was answered by the Department by e-mail on 26 February 2021 that Engelbrecht had been dismissed on 13 January 2021, and that Solidarity had in fact been informed of this on 18 January 2021.

 

[39]  On 9 March 2021, the Department gave notice to K[...] that the post of farm manager was due to be advertised again, and as a result, his contract of employment would not be renewed beyond 31 March 2021. He was however asked to provide reasons why his contract should be extended.

 

[40]  In response, and on 16 March 2021, K[...] submitted a resignation by e-mail, giving notice to 31 March 2021. He contended in such resignation that his continued employment had become intolerable. This resignation was promptly followed with a referral of an unfair dismissal dispute by Solidarity (on behalf of K[...]) to the CCMA on 17 March 2021. It was contended that K[...] had been constructively dismissed by the Department as contemplated by section 186(1)(e) of the LRA. It was further contended that such constructive dismissal was substantively and procedurally unfair. Significantly, this unfair dismissal dispute was not founded on any case / contention of discrimination (harassment).

 

[41]  The unfair dismissal dispute came before arbitrator Carlton Johnson at the CCMA in Cape Town, over a number of days in January 2022, for arbitration. In an arbitration award handed down on 2 February 2022, arbitrator Johnson found, with reference to all the incidents discussed above, and the grievances that K[...] had lodged against Engelbrecht, that K[...]’s continued employment was rendered intolerable. According to the arbitrator, this was because the Department had failed to take expeditious steps to ‘call Engelbrecht to order’ and thus K[...] was expected to deal with an ‘almost impossible situation’. The arbitrator believed that the Department failed to deal with the fact that Engelbrecht was out of control. The arbitrator concluded that K[...]’s resignation on 16 March 2021 thus constituted a constructive dismissal, and that such dismissal was substantively unfair. K[...] was awarded 12 months’ salary in compensation. The Department complied with this award and paid the compensation awarded to K[...].

 

[42]  The above being the relevant facts, what is then the applicant’s pleaded case where it comes to establishing harassment on arbitrary grounds? Firstly, and in summarising the facts in the statement of case, the applicant sets out all the events as discussed above. Save for the single contention that Engelbrecht on 9 July 2020 falsely accused K[...] of being a racist, there is nothing pleaded to indicate that what happened between Engelbrecht and K[...] was based on race or because of race. In short, there was no case pleaded and made out that Engelbrecht behaved towards K[...] as he did, because he was coloured, and K[...] was white. Also, no such case was made out in K[...]’s own testimony in Court.

 

[43]  I honestly understand K[...]’s frustration with all that happened. He obviously could not understand why Engelbrecht behaved towards him as Engelbrecht had done. K[...] was obviously entitled to expect that Engelbrecht not conduct himself in the manner as transpired in this case. Because the conduct of Engelbrecht is inexplicable and undoubtedly irrational, it is clear to be that it was considered by Solidarity and K[...] to be arbitrary, and thus someone needed to be blamed. That may well be, but this does not make it arbitrary as contemplated by ’arbitrary conduct’ under the EEA for the purposes of establishing discrimination. There is no pleaded case, nor is there any case made out in K[...]’s evidence in Court, that Engelbrecht’s behaviour towards K[...] was somehow connected to K[...] as a person or was due to his personal attributes, beliefs, characteristics or persuasions. Thus, whilst the behaviour of Engelbrecht may be arbitrary, it does not meet the requirements of arbitrary conduct necessary to establish discrimination, as contemplated by Harksen supra.

 

[44]  In my view, the applicant was simply equating arbitrariness to discrimination. This emerged throughout the testimony of K[...]. He considered it be most unfair, unlawful, inexplicable and irrational that Engelbrecht would conduct himself towards K[...], as Engelbrecht had done. Even if there is merit in these contentions, it cannot per se not lead to conclusion of arbitrary conduct establishing discrimination, without the Harksen connection. As succinctly stated in Naidoo and Others v Parliament of the Republic of SA[33]: ‘… Irrationality does not win a case, the irrationality of discrimination does …’. Also comparable in casu is the following dictum in Sethole supra:[34]

 

‘… What the applicants do not comprehend that all these contentions, even if true, do not establish the ‘further element’ of discrimination.  In simple terms, the phrase ‘arbitrary’ in the context of the unlisted grounds in terms of Section 6(1) of the EEA is not a synonym for ‘irrationality’ or even ‘unlawful’.  They are different concepts. Something may therefore be irrational or unlawful, but would not be discrimination, without also establishing the ‘further element’ as per Prinsloo …’[35]

 

[45]  The point is that not everything bad, inexplicable or irrational that may happen to an employee is always discrimination. Yet that seems to be the default position often erroneously adopted. It must be understood that it is essential that in order to succeed with a discrimination claim, a claimant, such as K[...], must establish a direct and proper nexus between that which is bad, and either the listed grounds in section 6(1) of the EEA or the person of the claimant (meaning personal attributes and / or characteristics). Bald assumptions are not sufficient. As held in LA Foy v Department of Justice and Constitutional Development and Others[36]:

 

‘Discrimination is an act of making distinctions. It is unjust or prejudicial treatment of different categories of people. Yet again the evidence tendered before this court is far from demonstrating discrimination. As indicated above, La Foy simply suffered from unpleasant consequences of the exercise of management functions …’

 

[46]  In fact, the very facts of the case in casu prove the point I have made above. K[...] believed that as a result of what he had to endure at the hands of Engelbrecht and then the Department’s perceived inability to get Engelbrecht under control and properly deal with him, rendered his continued employment intolerable. That is indeed a case that could be properly made out on the facts of this case, without having to resort to contentions of discrimination. And that is exactly what happened. Such a dispute went to the CCMA, and a CCMA arbitrator, after considering the facts of this case, decided that for these reasons, K[...] had been constructively dismissed, and such dismissal was substantively unfair. This award was never challenged, and stands. The point is that the same arbitrary behaviour that rendered the constructive dismissal of K[...] to be substantively unfair, cannot also constitute discrimination, without also establishing the Harksen considerations or the existence of one of the listed grounds in section 6(1) of the EEA. Described as simply as possible, arbitrary behaviour per se can render continued employment intolerable, and result in a substantively unfair constructive dismissal, without it having to be shown to be discriminatory. When the applicant elected to pursue this course of action to finality in the CCMA, it must mean that all the instances of unacceptable conduct by Engelbrecht as referred to in the statement of case, save only for the single issue of a false allegation of racism, cannot be seen to constitute harassment of the kind that establishes discrimination.

 

[47]  This leaves only the single incident of Engelbrecht allegedly falsely accusing K[...] on 9 July 2020 of being a racist. I accept that accusing someone falsely of being a racist could be seen to be racist behaviour in itself.[37] But is this single incident sufficient to establish harassment founded on discrimination, which is what the applicant relies upon.[38] It is ironic that the applicant actually appreciates the difficulty faced by it, considering that the applicant pleaded a ‘recurring’ harassment based on racism. This single incident can hardly be recurring. The recurring harassment that however did take place was the irrational and inexplicable conduct of Engelbrecht towards K[...], but this had nothing to do with the applicant as a person, did not satisfy the Harksen principles and had nothing to do with the listed grounds in section 6(1) of the EEA. In my view, the single issue of a false accusation of racism does not make everything had happened to K[...] being motivated by racism. Such a nexus has simply not been shown to exist. No doubt, Engelbrecht is the employee from hell no manager should have to endure. But that is because Engelbrecht is who he is, and not because of any attributes that may be attributable to K[...] as a person.

 

[48]  I conclude in this regard by saying the following. For harassment to be discrimination, it must be objectively shown that the cause for the harassment is either a ground as specifically listed in section 6(1) of the EEA, or is because of the person, characteristics, or attributes of an individual. But this does not mean that harassment that results from arbitrary conduct but does not qualify as discrimination, would not be actionable. As is the case in casu, it may well give rise to a successful claim of a substantively unfair constructive dismissal. Or it could give rise to a civil claim for damages.[39] In the end, the applicant in this case may have proven harassment, based on K[...]’s testimony as it stands, considered together with the undisputed facts and documents. But the applicant did not prove that the harassment is founded on discrimination.

 

[49]  What does all this then mean? In terms of section 11(2) of the EEA, the applicant needed to prove the conduct complained of is not rational and the conduct complained of amounted to discrimination. The applicant did establish the conduct complained of was not rational. However, the applicant did not establish that the conduct complained of amounted to discrimination. As such, the applicant failed in proving the existence of discrimination on arbitrary grounds, and that should be the end of the matter. As said in La Foy supra,[40] with reference to section 11(2):

 

‘… Absent proof of any one of the above leads to the complainant failing in his or her claim. I must state, the burden placed on La Foy is undoubtedly an onerous and heavy one. …’

 

[50]  Because the applicant has failed to prove discrimination as contemplated by section 11(2)(b) of the EEA, even on K[...]’s own evidence as it stands, and considering the undisputed facts and documentary evidence, the applicant’s claim can never succeed. There would simply be no cause or reason, in such circumstances, for the Department to have to answer. And worse still, even the pleaded case, as it stands, does not make out a proper case of discrimination. This really should be the end of the matter for the applicant.

 

[51]  But assuming I am wrong, and the applicant has managed to put forward a reasonable case of discrimination based on harassment, it is my view that the applicant’s case is nonetheless doomed to fail as a result of the applicant’s failure to satisfy the requirements of section 60 of the EEA. It is in terms of section 60 that an employer can be held vicariously liable for conduct of its employees that amount to discrimination towards other employees. Section 60 provides:

 

‘(1) If it is alleged that an employee, while at work, contravened a provision of this Act, or engaged in any conduct that, if engaged in by that employee’s employer, would constitute a contravention of a provision of this Act, the alleged conduct must immediately be brought to the attention of the employer.

 

(2) The employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct and comply with the provisions of this Act.

 

(3) If the employer fails to take the necessary steps referred to in subsection (2), and it is proved that the employee has contravened the relevant provision, the employer must be deemed also to have contravened that provision.

 

(4) Despite subsection (3), an employer is not liable for the conduct of an employee if that employer is able to prove that it did all that was reasonably practicable to ensure that the employee would not act in contravention of this Act.’

 

[52]  First applying section 60(1), and again considering the applicant’s pleaded case, the documents and K[...]’s testimony, it can hardly be said that a case of a contravention of the EEA was immediately brought to the attention of the Department. In fact, the very first time a specific complaint of discrimination in the form of harassment was raised by K[...] and / or Solidarity was in the CCMA referral dated 25 February 2021, which was after Engelbrecht had departed. I have little doubt in accepting that the first time a case of a contravention in terms of the EEA came to the mind of Solidarity and K[...], was after the serious assault by Engelbrecht on K[...] on 11 November 2020. This is evident firstly from the fact that in respect of all the incidents prior to the incident of 9 July 2020, K[...] raised no grievance concerning the conduct of Engelbrecht, and in particular, no grievance was raised concerning the incidents in 2018 and 2019 which form part of the applicant’s pleaded case. Instead, K[...] dealt with the incidents as disciplinary transgressions, initiating disciplinary proceedings, and then abiding by the sanctions meted out to Engelbrecht pursuant thereto. Should the applicant rely on these incidents as a basis for the initiating of complaints in the context of holding the Department liable for discrimination, it was done for the first time, at best, on 17 August 2020, by way of the lengthy e-mail from Solidarity, that made reference thereto. This would be more than a year after the last event, which by no stretch of the imagination can be described as immediate. But even when raised, it is not raised as a contravention of the EEA. In my view, what was raised in 2020 by Solidarity and K[...] was not a complaint in accordance with what is envisaged by section 60(1).

 

[53]  I next consider the July and August 2020 events. It is for the first time, where it comes to these events, that K[...] himself raised formal grievances and Solidarity engaged with the Department about the conduct of Engelbrecht. It is true that these grievances / complaints were raised virtually immediately upon the events happening. However, these grievances / complaints were not in the form of bringing alleged contraventions of the EEA to the attention of the Department. Instead, these grievances were more in the form of formal complaints of misconduct and unacceptable behaviour on the part of Engelbrecht towards K[...], in terms of which both K[...] and Solidarity demanded that disciplinary action be taken against Engelbrecht. And even where it comes to the grievance pertaining to the false allegation of racism raised by K[...] on 15 July 2020, K[...] did not say that he considered such conduct to be discrimination against him, and be dealt with on such basis. All considered, this would equally not qualify as the notification of a complaint as contemplated by section 60(1) of the EEA.

 

[54]  Insofar as the assault of 11 November 2020 is considered as the final act of harassment, as appears clearly from the unfair discrimination dispute referral by Solidarity to the CCMA dated 25 February 2021, this was never reported to the Department by either K[...] and Solidarity as an act of harassment constituting discrimination. In any event, it is clear from the evidence that where it comes to this event, immediate action was taken by the Department without in any manner being prompted by K[...] or Solidarity to do so. Engelbrecht was immediately suspended, entirely removed off site, and then disciplined. In short, there was no complaint raised by K[...] or Solidarity in this regard, which can serve as notification under section 60(1).

 

[55]  All said, K[...] either did not immediately report the alleged harassment as conduct in contravention of the EEA to the Department and demand that action be taken in such context, or what he reported was what he believed was misconduct by Engelbrecht (and not discrimination), in respect of which he demanded that disciplinary action be taken, which was taken. For this reason alone, the Department cannot be held vicariously liable, and the applicant’s claim must fail.

 

[56]  Nonetheless, I will also consider if the requirements of section 60(2) have been satisfied, which requires that the employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct and comply with the provisions of the EEA. When Engelbrecht transgressed in 2018 and 2019, and K[...] complained, disciplinary action was taken against Engelbrecht. K[...] never testified that this disciplinary action was somehow deficient or not genuinely conducted. The documentary evidence shows that proper disciplinary proceedings were conducted before independent chairpersons, pursuant to which properly motivated and justified disciplinary sanctions were meted out towards Engelbrecht. It is difficult to understand what more could be expected from the Department as necessary steps to eliminate the conduct complained of.

 

[57]  Even should the applicant have suggested that the disciplinary sanctions or findings of the chairpersons were somehow deficient or inadequate in dealing with the matter, or even wrong, it still does not assist the applicant. I deal with this because K[...] in his testimony said that he was dissatisfied and did not agree with the finding by Jacobs pursuant to the October 2020 disciplinary hearing that there was insufficient evidence that Engelbrecht had falsely accused K[...] of racism. The point however is that there is no suggestion that this finding was not properly arrived at, and that Jacobs did not properly and fairly discharge her duties in coming to this finding. The simple fact is that the cause of complaint was properly and lawfully deal with, which is all that is needed. The following dictum in Potgieter v National Commissioner of the SA Police Service and Another[41] is apposite:

 

‘The complaint regarding the sanction imposed on Mafodi does not assist the case of the applicant. I agree with Mr Moshoana for the respondent that the issue of the sanction imposed by the chairperson of the disciplinary hearing is irrelevant, this not being a review or appeal. The rights of the applicant did not depend on whether Mafodi was dismissed or not, she would still have had the right to claim even if the employment relationship with Mafodi was terminated …’

 

[58]  Similarly, the 2020 events were properly and reasonably dealt with by the Department, and it did all that could be considered to be reasonably necessary in this regard. It must be remembered that K[...] and Engelbrecht effectively exchanged grievances in July 2020 about what each of them perceived happened on 9 July 2020 relating to alleged racist utterances. K[...] confirmed in his testimony that the Department met with him and Engelbrecht on 13 July 2020, to mediate the dispute between them to try and amicably resolve it. K[...] further testified that the mediation failed, and he then required that disciplinary action proceed against Engelbrecht pursuant to his grievance, which did happen. Again, there is no suggestion or evidence that the disciplinary action was not genuine and properly conducted, and these proceedings actually led to the dismissal of Engelbrecht. The aforesaid is surely all that can reasonably be expected from the Department where it comes to dealing with this.

 

[59]  In summary, and on the undeniable facts as they stand, Engelbrecht transgressed towards K[...] in 2018. K[...] required action be taken, Engelbrecht was then disciplined, and received a final written warning. When Engelbrecht again transgressed towards K[...] in 2019, K[...] once again required disciplinary action be taken, and it was, again resulting in a final written warning against him, because an independent chairperson after proper consideration of all evidence came to the conclusion that there were certain factors that mitigated against dismissal of Engelbrecht. And finally, when things got more serious in 2020, resulting in several grievances by K[...] against Engelbrecht, this yet again resulted in disciplinary proceedings against Engelbrecht, pursuant to which Engelbrecht was dismissed. The documentary evidence also shows that the Department kept Solidarity appraised of the disciplinary proceedings against Engelbrecht in 2020, which also works in favour of the Department.[42] How can all this possibly be described as a failure by the Department to take reasonable steps to eliminate the conduct complained of? Surely not. By comparison, and in Amathole District Municipality v Commission for Conciliation, Mediation and Arbitration and Others[43], in the context of sexual harassment, the Court held:

 

‘Moreover, the appellant took steps immediately after the report of the grievance hearing was received. Notwithstanding negative findings of the grievance by the tribunal, it was nevertheless recommended that she be relocated to keep the employee away from the alleged perpetrator. There was even an offer to attend to her stress problems. These are the steps envisaged in s 60 of the Act. Ms Van Staden, for the employee, could not suggest any other steps which could and should have been taken by the employer. Thus, even if the employee had proved that she had been sexually harassed by Mr Fredericks, there was no evidentiary basis to conclude that the appellant was liable in terms of s 60 of the Act …’

 

[60]  It can hardly be said that the Department was somehow shielding or advantaging Engelbrecht, to the detriment of K[...]. As K[...] himself had to concede in evidence, whenever he raised a grievance about Engelbrecht, it was dealt with. As opposed to this, K[...] was never disciplined, nor was any kind of action taken against him, as a result of the grievances raised by Engelbrecht. This state of affairs is inconsistent with the notion of the Department not attending to the complaints by K[...], and somehow favouring Engelbrecht. Realising this contradiction, the applicant’s representative even sought to suggest that by failing to attend to Engelbrecht’s grievances against K[...], this constituted conduct in contravention of the EEA which also supported the applicant’s case. If this is not pure opportunism, it is difficult to understand what would be, and I consider it to be nothing else but a ludicrous proposition.

 

[61]  Ironically, it is another case involving Solidarity that provides a decent example of the kind of conduct by an employer that would attract vicarious liability in terms of section 60 of the EEA, being Solidarity on Behalf of Oosthuizen v SA Police Service and Others[44]. By way of illustration,[45] and in that case, the evidence showed that two subordinates conspired to falsely accuse their superior of racism, in order to contradict disciplinary action being taken against them by such superior. This conduct was brought to the attention of the employer. And despite an investigation report commissioned pursuant to the complaint raised, in which it was concluded that disciplinary measures be taken against these two subordinates, this was abandoned, in circumstances where such report actually concluded that there was a prima facie case of racial harassment. The two subordinates were never charged for the misconduct of making false accusations of racism. Actually, the superior was criticised for lodging a grievance about this. Worse still, it was decided to extract some of the informative statements from the investigative reports, without any explanation for it, thus effectively suppressing critical evidence against these two individuals in order to manipulate the outcome of the disciplinary hearing. The superior was never given the opportunity to testify in the hearing. The Court held that the employer ‘… dismally failed to investigate the racial confrontation and take necessary steps to eliminate it’ and that conversely, the employer ‘did everything in its power to protect the perpetrators of racial harassment’.[46] This was also not a single incident, but part of an orchestrated campaign.

 

[62]  It is clear from the exposition of the facts in Oosthuizen supra, as compared to the case in casu, that they are worlds apart. In casu, the grievance of a false allegation of racism raised by K[...] was always taken seriously by the Department. It was considered at management level, and it was resolved that it be immediately dealt with. It was then first sought to be dealt with by way of mediation, and when this failed, charges were brought against the errant employee (Engelbrecht), based on the very complaint by K[...]. K[...] had the opportunity to testify in the disciplinary hearing, which took place before an independent chairperson. In the end, it was a single incident which, ironically, and after all evidence had come in, was found to be unproven. The counter grievance by Engelbrecht accusing K[...] or racist conduct was also considered, found to be of no substance, and no action was taken against K[...] as a result. Comparing all this with Oosthuizen must leave one convinced that no case of vicarious liability can be said to exist, by virtue of section 60 of the EEA.

 

[63]  It must also be considered that even on the applicant’s pleaded case, it has never been said that the disciplinary action taken against Engelbrecht over the years was somehow deficient, inappropriate, wrong, or even arbitrary, and that he actually should have been dismissed long ago. In short, the applicant does not claim there was something wrong or untoward in the actual earlier disciplining of Engelbrecht and / or the outcome thereof and that this contributed to his experience of harassment. What the applicant pleaded was that Engelbrecht needed to be dealt with as ‘a matter of urgency’, and that disciplinary proceedings were only instituted ‘months after the incidents occurred’.  

 

[64]  So, can the Department then be criticised for not taking the required action with the required expedition in order to protect the rights of K[...]? True, the actions taken by the Department were not taken at breakneck speed. But they were taken in reasonably close proximity to the formal complaints raised. With the issue of the false allegation of racism on 9 July 2020 being the mainstay of the applicant’s case, it was reported on 15 July 2020, and the disciplinary hearing followed on 1 October 2020. This is a little slow, but not the kind of undue delay to attract the criticism dispensed by the applicant towards the Department in its pleaded case.[47] As stated in Right to Care supra[48]:

 

‘… On objective facts before me, it clearly took the respondent about three months to deal with her grievance. The formal grievance was lodged on 6 January 2021 and the disciplinary enquiry sat on 9 April 2021. That to me was prompt …’

 

[65]  Overall considered, I do not believe that the applicant, even on K[...]’s own testimony as it stands, considered together with the documentary evidence, has satisfied the requirements of section 60(2). I am convinced that the Department took the necessary steps to eliminate the unacceptable conduct of Engelbrecht that K[...] and Solidarity complained of, and thereby can be seen to have sought to comply with the provisions of the EEA. For this reason, as well, the discrimination claim must fail.

 

Conclusion

 

[66]  For all the reasons set out above, I conclude that the applicant has failed to discharge the onus on it to provide sufficient evidence to even establish a prima facie case that K[...] had been discriminated against in the form of harassment, on an arbitrary ground. In this respect, the applicant has failed to make out a prima facie case that the harassment in this case, even if accepted to exist, was based on discrimination. And next, insofar as the conduct of Engelbrecht towards K[...] was arbitrary, this arbitrary conduct does not satisfy the conditions as defined in Harksen supra necessary to establish arbitrary conduct that is also discrimination. But even more than that, the applicant has failed to satisfy the requirements to hold the Department vicariously liable, in that the provisions of both section 60(1) and (2) of the EEA have not been satisfied. This is because K[...] and / or Solidarity either did not immediately notify the Department of the conduct, or the conduct that they did report was never reported as discrimination or conduct in contravention of the EEA, but was reported as ordinary misconduct. Finally, and in any event, when the Department was alerted to this misconduct, it took the very action demanded of it, and this action ultimately led to the dismissal of Engelbrecht. In short, the Department did all that can reasonably be expected of it to eliminate the conduct complained of.

 

[67]  I appreciate that the conduct of Engelbrecht towards K[...] is inexcusable, and entirely unacceptable, and can be seen as harassment, as the arbitration award of arbitrator Johnson appears to find. This conduct would be irrational and wrongful, but is simply not discrimination. K[...] may have a claim under the actio legis Aquiliae and / or a claim for pain and suffering.[49] And considering this took place in the context of the employment relationship, the Department could possibly be held liable under common law vicarious liability.[50]   But these kinds of claims do not concern this Court, as no discrimination is involved. Borrowing the words of Prinsloo J in Mashego v Mpumalanga Provincial Legislature and Others,[51] the applicant was simply crying at the wrong funeral.

 

[68]  Consequently, the application for absolution from the instance therefore had to succeed.

 

Costs

 

[69]  This then only leaves the issue of costs. In this regard, this Court has a wide discretion in terms of section 162(1) of the LRA. In deciding the issue of costs, I consider a number of factors. The first is that no matter how one looks at it, K[...] was subjected to suffering at the hands of Engelbrecht. Even though it did not go so far as constituting discrimination, one cannot say he had no legitimate cause of complaint. I have understanding for why Solidarity and K[...] were dissatisfied, and will accept that they were simply misguided in pursing this claim in the manner that they did. They were not, in my view, mala fide. I also consider that both parties conducted themselves properly in the prosecution of and opposition to this case, and assisted the Court in coming to a conclusion. Then there is also the fact that K[...] is not employed, and considering his age, it will be difficult for him to find employment. I finally consider the ongoing relationship between the Department and Solidarity. For the above reasons, I have decided that it would be just and fair that no costs order be made.

 

Order

 

[70]  It is for all the reasons set out above that I made the order that I did, as reflected in paragraph 4 of this judgment, supra.

 

S Snyman

Acting Judge of the Labour Court of South Africa

 

Appearances:

 

For the Applicant:	Ms K Van Wyk of Solidarity
For the Respondents:	Advocate R Nyman SC
Instructed by:	aThe State Attorney

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