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[2026] ZALCCT 65
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Masimla v Pioneer Group (Pty) Ltd and Others (C435/2023) [2026] ZALCCT 65 (13 April 2026)
THE
LABOUR COURT OF SOUTH AFRICA
AT CAPE TOWN
Case
no: C435/2023
(1)
Reportable: Yes
(2)
Of interest to other Judges: Yes
08
April 2026
In
the matter between:
LAUREN
EBONY MASIMLA
Plaintiff
and
PIONEER
FISHING (PTY) LTD
First
Defendant
AFRICAN
PIONEER GROUP (PTY) LTD
Second
Defendant
AFRICAN
PIONEER MARINE (PTY) LTD
Third
Defendant
Heard
:
17
to 19 February and 25 April 2025
Delivered
:
08 April 2026
Summary:
(Trial – automatically unfair
dismissal relating to alleged
quid
pro quo
sexual
harassment – In limine points relating to court’s
jurisdiction to hear unfair discrimination claim arising
from alleged
conduct of a contractor, and whether automatically unfair dismissal
claim based on alleged conduct of employer in
giving effect to
contractor’s impermissible intention to dismiss her for reasons
relating to sexual harassment – court
not having jurisdiction
of unfair discrimination claim, but having jurisdiction over
automatically unfair dismissal claim –
plaintiff failing to
adduce evidence of sexual harassment or to make out a case that it
was a cause of her dismissal – automatically
unfair dismissal
claim dismissed – Court declining to entertain unfair dismissal
for misconduct claim)
JUDGMENT
LAGRANGE, J
Nature
of the claim
[1]
The plaintiff, Ms E Masimla (‘Masimla’) referred a claim
of unfair discrimination (
quid pro quo
harassment) under
section 10 (6) (h) of the Employment Equity Act 55 of 1998 (‘
the EEA ‘), and a claim of automatically
unfair dismissal
(reason relating to discrimination) in terms of section 187 (1) (f)
of the Labour Relations Act, 66 of 1995 (‘
the LRA ‘). In
the alternative to her claim for automatically unfair dismissal, she
claims her dismissal for misconduct by
the first defendant (‘Pioneer
Fishing’) was procedurally and substantively unfair. The claims
are set out in greater
detail below.
[2]
The defendants did question whether the second and third defendants
should have been joined as parties because they did
not employ the
plaintiff, but this was not raised as a special plea and accordingly,
no ruling has been made on the issue.
Ex tempore in limine
ruling
[3]
At the commencement of the trial the court was required to make an
in
limine
ruling on whether it would entertain her alternative claim
of unfair dismissal for misconduct and whether the defendant
companies
(‘Pioneer Group’) could be held liable for
automatically unfair dismissal, and sexual harassment of a
quid
pro quo
nature allegedly suffered by her, in circumstances where
the alleged perpetrator of the harassment, Mr P Greeff (‘Greeff’),
was not an employee, but an independent contractor, who had been
contracted to act as the Pioneer group Chief Operating Officer
(‘COO’) at the time.
[4]
Although these points should ordinarily have been raised by
exception, the court held that it could not ignore jurisdictional
questions or dispositive points of law, even if they were only raised
as part of Pioneer’s pleaded defence to the claims.
Both
parties made oral submissions on the preliminary points and an
ex-tempore
ruling was handed down. A summary of the reasons
given for the ruling is provided below.
[5]
The following background facts were accepted as common cause or
pleaded:
5.1
The plaintiff had a consensual sexual relationship with a consultant,
who was an independent
contractor performing the role of acting chief
operating officer of the group. The relationship between them
eventually came to
an end. The plaintiff alleged that, in
retaliation, the contractor had blocked her promotion and, amongst
other things, caused
her removal from an acting position as group HR
manager. She alleges this conduct constituted sexual harassment and
unfair discrimination
under the EEA.
5.2
The plaintiff was later dismissed and alleged that the dismissal was
also instigated by
the contractor, and that the employer had given
effect to the contractor’s vindictive motives by dismissing
her.
Can the first defendant,
Pioneer Fishing, be held liable for alleged quid pro quo harassment
committed by the acting COO?
[6]
Section 60 of the EEA states:
‘
60 Liability
of employers
(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.’
(emphasis added)
[7]
What this provision is intended to do is to provide a mechanism by
which an employer
can
be held vicariously liable for the
unfairly discriminatory conduct of an employee, unless the employer
can show that it took the
necessary steps to eliminate such conduct.
The section makes no mention of any other natural person whose
unfairly discriminatory
actions it can be held liable for.
[8]
The
plaintiff argues that the category of persons who can render an
employer liable under section 60 of the EEA has been expanded
by the
promulgation of the Code of Good Practise on the Prevention and
Elimination of Harassments in the Workplace
[1]
(‘the Harassment Code’).
[9]
The concluding paragraph of the introduction to the HC reads:
‘
This Code of Good
Practice is i
ntended to address the prevention, elimination, and
management of all forms of harassment that pervade the workplace
.
It is guided by the ILO Convention 190 and its Recommendation
concerning the elimination of Violence and Harassment in the World
of
Work, 2019; the Discrimination (Employment and Occupation) Convention
111 of 1958 (Convention 111) and the ILO Convention 151
relating to
Occupational Health and Safety.’
(emphasis added)
Notably, it is not
confined to harassment in the employment relationship alone, but the
workplace as an environment in which persons
acting in various legal
capacities may interact with one another.
[10]
S 3(c) of the EEA states that the Act must be interpreted, amongst
other things, taking account of any relevant code
of good practise,
which obviously includes the Harassment Code. Paragraph 2 of the Code
deals with its scope of application. The
plaintiff emphasises
paragraph 2.2 which states that ‘
although
this
code applies to the working environment as a guide to employers,
employees and applicants for employment
, the perpetrators
and victims of harassment may include, but is not limited to …
owners, employers, managers, supervisors,
employees, job seekers and
applicants, persons in training, volunteers, clients and customers,
suppliers, contractors and others
having dealing with a business’
(emphasis added). The plaintiff argues this expands the variety of
natural persons whose actions can give rise to acts of unfair
discrimination for which an employer ought to be held liable.
[11]
The first point which needs to be made is that clause 2.1 of the Code
states that it ‘
applies to all employers and employees, as
provided for in the
Employment Equity Act. 1998
’
. It
also explains that, in determining whether a person is an employee,
the presumptive employment test under
section 200A
of the LRA is
applicable. In addition, volunteers assisting in an employer’s
business are also considered employees. It further
makes it clear
that it applies if the employer is in the formal or informal sector,
and irrespective of whether the employer is
a commercial undertaking
or not.
[12]
Despite the wider range of workplace participants whose conduct is
covered by the code, I am not persuaded that the wording
of the Code
extends the scope of employer liability for employee acts of
harassments in the workplace under
section 60(3)
of the EEA, to
include liability for for the conduct of non-employees in the
workplace. In this regard it is important to point
out that paragraph
7.3 of the code makes it expressly clear that not every act of
discrimination in the workplace will necessarily
fall within the
ambit of the EEA but may fall within the ambit of the Promotion of
Equality and Prevention of Unfair Discrimination
Act 4 of 2000.
Moreover, even though in interpreting the application of the EEA, one
must take account of a code of good conduct,
the code of good conduct
which is a guideline to conduct cannot, in and of itself, indirectly
create new forms of liability. That
would require an amendment of s
60.
[13]
Consequently, I am satisfied that the first defendant cannot be held
responsible under s 60 of the EEA for alleged acts
of harassment
committed by Greef, who was an independent contractor.
Moreover, nothing in the pleadings makes it clear that
it was the
First Defendant itself, which was responsible for imposing the
allegedly prejudicial measures on the plaintiff as a
confederate of
Greef by somehow assisting him in giving effect to his alleged acts
of unfair discrimination in the form of ‘
quid pro quo’
sexual harassment.
Potential liability for
automatically unfair dismissal by giving effect to negative
consequence of
quid pro quo
sexual harassment.
[14]
However, the plaintiff argues that when it comes to the claim of
automatically unfair dismissal the first defendant was
instrumental
in giving effect to the vindicative actions of Greef caused by the
termination of the romantic relationship because
it was the party
setting up the disciplinary enquiry at his instigation and it
proceeded to dismiss her thereby fulfilling the
negative consequence
of
quid pro quo
sexual harassment allegedly committed by
Greeff. This was specifically pleaded in paragraph 71 of the
statement of claim, unlke
the other acts of discrimination which were
directly attributed to Greef alone.
[15]
Whether the plaintiff will be able to prove this claim is another
matter, but it seems to me that Pioneer can be held
directly liable
as the employer if the plaintiff can prove it made common cause with
the contractor and dismissed her in fulfilment
of an intention on his
part to have her dismissed on account of the improper reason alleged.
[16]
Accordingly, the plaintiff should be allowed to pursue her
automatically unfair dismissal claim.
Unfair dismissal claim
[17]
Under s 158(2)(b) of the LRA, this court may , if it is expedient to
do so, hear a dispute which ought to have been referred
to
arbitration. There is much to be said for not allowing this court’s
time to be taken up with hearing evidence pertaining
to a claim which
the LRA has specifically identified arbitration as the proper forum
for determining it. There is also merit
in not duplicating
evidence in two forums on issues which are common to both. On
the other hand, the parties have agreed
that the plaintiff should
start. In my view it would be pointless for this court to become
embroiled in the unfair dismissal dispute
as well, if the plaintiff
should fail to have made out a case of automatically unfair dismissal
at the close of her evidence. The
fact that the plaintiff will start
leading evidence also complicates the process of leading evidence in
the unfair dismissal claim
as it will be necessary for the defendant
to put its entire case to her in cross examination. That is likely to
take longer than
the normal process of the plaintiff putting her
version to the employer’s various witnesses, which would occur
in the ordinary
course of hearing a case of unfair dismissal on its
own.
[18]
In the circumstances, I am not satisfied it will be expedient to
collapse both proceedings into one and the enquiry into the fairness
of her dismissal for misconduct, should be conducted separately from
the hearing of her claim of automatically unfair dismissal.
Conclusion
[19]
In summary, the
in limine
ruling handed down on 17 February
2025 was that:
‘
1.The plaintiff
[2]
has not made out a case in the pleadings that this court has
jurisdiction to hear her case of harassment under the
Employment
Equity Act 55 of1998
.
‘
2. Notwithstanding
paragraph 1 above, the plaintiff has sufficiently pleaded a case that
the First Defendant
[3]
was giving effect to another party’s allegedly unfair
discriminatory action in dismissing her and her claim of
automatically
unfair dismissal against the First Defendant may
proceed.
3. The court will not
hear the plaintiff’s alternative claim of unfair dismissal for
misconduct.’
Brief chronology
[20]
Only the plaintiff gave evidence. Apart from her evidence the parties
had agreed in their pre-trial minute that a number of facts
were
common cause.
[21]
Ms Lauren Masimla was employed by Pioneer Fishing (Pty) Ltd
(‘Pioneer’) in March 2015 as the Human Resources Manager,
a position she occupied at the time of her dismissal on 14 June 2023.
She was based primarily at the employer’s operations
in St
Helena Bay. Operationally, she reported to the General Manager of
Pioneer Fishing, initially Mr Frank Stanley, who retired
in 2020, and
thereafter to Mr Sean Swartz. From approximately 2020 onward, she
also reported on a ‘dotted-line’ basis
to Mr Pieter
Greeff, who had been appointed as Group Chief Operating Officer of
African Pioneer Marine as an independent contractor.
[22]
During the course of 2020, and while working closely with Greeff,
Masimla was introduced as the acting Group Human Resources Manager,
within the Pioneer group. Her acting appointment was communicated in
management meetings and confirmed by formal communications
issued by
Greeff. In that capacity, she rendered human resources services to
multiple entities within the African Pioneer Marine
grouping,
including Pioneer Fishing, Glenrick, HIK Abalone, and Namzamo
Fishing. Her evidence was that she performed the full suite
of HR
functions across those entities, including recruitment and selection,
training and development, organisational design, employee
relations,
and industrial relations, and that she exercised oversight over
junior HR staff assigned to the various operations.
Although she
acted in this role for an extended period, no formal written
appointment confirming her role was made at the time.
[23]
During 2020, in the course of their working relationship, Masimla and
Greeff also engaged in a consensual romantic relationship.
The
relationship coincided with her acting as an HR manager at Pioneer
group level and with her reporting relationship to him.
He had only
been appointed as COO in March that year. WhatsApp correspondence
tendered in evidence reflected a relationship that
combined personal
intimacy with ongoing work-related interaction. According to Masimla,
the relationship did not negatively affect
her work performance
during the period in which it subsisted. It is common cause that the
relationship also did not have any negative
impact on her working
relationship with Greeff.
[24]
The relationship came to an end on 19 April 2022. Masimla’s
evidence was that the termination of the relationship was initiated
by Greeff and was communicated to her in a WhatsApp message as a
final breakup rather than a temporary separation. Although she
initially described the parties as “taking a break”, she
accepted under cross-examination that Greeff had made it clear
in his
communications that the relationship had ended. Immediately following
the breakup, communication between them remained relatively
cordial
and continued to include both personal and work-related exchanges.
[25]
On 1 May 2022, Greeff addressed an email to Masimla regarding the
contemplated formalisation of the Group Human Resources Manager
role.
In that email, he expressed strong support for her appointment,
indicated that the Group Chief Executive Officer, Mr S Dondolo
(‘Dondolo’), was generally amenable to the appointment,
and explained that a presentation would be required so that
the CEO
could understand how HR processes would be implemented at a group
level. Masimla understood this email as confirmation
that her
long-standing acting role would shortly be formalised.
[26]
However, less than three weeks later, on 19 May 2022, Greeff informed
Masimla that the Group HR Manager position was being placed
on hold.
In the same communication, he advised that she would revert to being
responsible only for the HR function at Pioneer Fishing
and would
report exclusively to Mr Swartz. The senior HR officer position,
which had been created to support her anticipated promotion
and which
had been advertised, was likewise placed on hold. Masimla testified
that this decision had not been discussed with her
in advance and
came as a shock, given the positive tone of the 1 May 2022 email.
[27]
Masimla immediately queried the decision. In WhatsApp correspondence,
she pointed out that the need for a group HR role had existed
since
2020 and questioned why, shortly after the breakup, that need had
seemingly disappeared. She said to Greeff that she believed
the
decision was personally motivated and linked to the termination of
their relationship. Greeff responded that the decision was
a business
one and denied any personal motive. Masimla testified that, despite
repeated requests, no coherent or detailed business
rationale was
ever provided to her. Greeff denied this, saying he had explained the
business rationale for the change of plan.
[28]
Following the withdrawal of the Group HR role, Masimla testified that
Greeff’s conduct towards her changed materially. According
to
her evidence, he became agitated and hostile in his interactions with
her, frequently raising his voice, shouting, or reacting
aggressively
when she asked questions or expressed a different view. She testified
that this conduct occurred in work meetings
and, at times, in the
presence of other managers and employees. She described feeling
anxious, insecure, and humiliated, and stated
that she struggled to
understand why his attitude toward her had altered so significantly.
[29]
She was so distressed by the group HR manager position being put on
hold and by what she perceived as a hostility from Greeff that
it
took her to the point that she submitted her resignation, for the
sake of her mental health. Despite this drastic step,
in the
end it appears she was persuaded by the general manager of Pioneer
Fishing, Mr S Swartz (‘Swartz’), not to resign.
Consequently, she carried on working in her existing role, which
entailed her performing a group HR function in an acting capacity.
[30]
She and Greeff continued to have regular WhatsApp communications
relating to work and of a personal nature but it is notable that
intermittently they seem to have more spats, even though they usually
ended with mutual apologies being made.
[31]
Nonetheless the change in the HR plans continued to be a source of
dissatisfaction for Masimla. WhatsApp communications showed
that she
continued to question why the plans had changed. In reply, Greeff
referred at least four time to having held discussions
with her to
explain the reasons and that they were business related and not
personal. She agreed that the explanation which was
offered by the
company was that Pioneer Marine which had the largest staff component
of all the companies in the group, utilised
the greater part of HR
resources in the group and it made sense for her to fulfil the HR
requirements of that firm.
[32]
On 11 July 2022, she addressed a formal email to Greeff requesting a
meeting to discuss the deterioration in their working relationship
and its impact on her. She proposed that the Group CEO, Mr Dondolo
(‘Dondolo’), attend as an observer in order to avoid
future disputes about what had been said. A meeting took place on 12
July 2022, without Mr Dondolo present. Masimla’s evidence
was
that the discussion was constructive, that Greeff acknowledged her
concerns, undertook to improve his behaviour, and indicated
that the
Group HR Manager role would be reactivated. She testified that there
was a noticeable improvement in their working relationship
for a
period thereafter.
[33]
However, at that meeting Greeff also raised with her that he had
allegedly received information from other staff members that she
was
making negative comments about him. He never took this issue
further until He reported them to Dondolo, supposedly in
November
that year.
[34]
According to Masimla, the improvement after the July 2022 meeting was
short-lived and by October 2022, Greeff’s hostile conduct
resumed. She described an incident in which he shouted at her
aggressively in the Cape Town office after she attended work briefly
while on leave, an incident she said occurred in the presence of
other employees, though she conceded that, at the time, he was
prone
to behave aggressively with other staff too. She further testified
that, despite the stated suspension of the Group HR role,
she
continued to perform group-level HR functions and that strategic
documents prepared later in 2022 continued to reflect the
Group HR
position as vacant rather than abolished.
[35]
On 9 November 2022, Greeff sent Masimla an email restructuring her
reporting lines and emphasising that she was required to give
her
“100% support” to Pioneer Fishing. Masimla perceived this
communication as a further diminution of her role and
authority. On
the same day, she addressed an email to Mr Dondolo in which she
disclosed the prior romantic relationship with Greeff,
explained that
it had ended some months earlier, and alleged that, since the
breakup, Greeff had made her working life intolerable.
She referred
specifically to humiliating behaviour in the presence of colleagues
and to the withdrawal of the Group HR role. She
requested a meeting
and expressed a desire to continue working for the group.
[36]
A meeting between Masimla and Mr Dondolo eventually took place on 8
December 2022. Masimla’s evidence was that the meeting
lasted
only a few minutes and did not meaningfully address her concerns. She
testified that Mr Dondolo suggested she was heartbroken,
commented on
her appearance, and stated that he did not wish to be placed in a
position of choosing between her and Greeff, as
both were valued
employees. The meeting ended without any concrete resolution.
[37]
Dissatisfied with this engagement, Masimla submitted a formal written
grievance on 14 December 2022. In this document, she raised
two
principal concerns: the unilateral changes to her role and reporting
lines, and the handling and withdrawal of the Group HR
Manager
position. She expressly requested that an external, neutral mediator
be appointed to assist in resolving the conflict between
herself and
Greeff. When no response was forthcoming, she followed up in January
2023 seeking clarity on whether her proposal had
been accepted.
[38]
Instead of appointing an external mediator, management directed
Masimla to meet directly with Greeff in an attempt to resolve the
issues and to prepare agreed minutes of that meeting for submission
to the CEO. The meeting took place on 1 February 2023. Masimla
prepared minutes reflecting her account of the discussion and
proposed action steps.
[39]
Masimla testified that during the meeting Greeff expressed anger
about the fact that she had reported his conduct to Mr Dondolo.
She
stated that he accused her of humiliating and disrespecting him,
questioned whether she had considered the consequences of
her actions
for her employment and her children, and warned that he would obtain
statements or affidavits from other employees
to show that she was
working against him. She regarded these statements and threats as
intimidating and retaliatory.
[40]
Shortly after the February 2023 meeting, Greeff obtained written
statements and affidavits from several employees across different
entities within the group. These statements raised complaints about
Masimla’s conduct, many of which related to events said
to have
occurred months earlier. Masimla testified that the statements were
procured at Greeff’s instance, and that some
employees later
apologised to her and indicated that they had been misled as to the
purpose of the statements. Moreover, she claimed
the allegations had
not been raised with her contemporaneously when the incidents were
said to have occurred.
[41]
Greeff did not respond to Masimla’s draft minutes for some time
but eventually produced his own version, which included allegations
and issues that, according to Masimla, had not been discussed at the
meeting. Dondolo, issued a letter on 16 February in which
he claimed
to have read both their versions of what transpired in the meeting on
1 February and considered the matter closed. Masimla
questions this,
as she claims Greeff’s version of the minutes had not yet been
issued by then.
[42]
After receiving Dondolo’s assessment of the meeting on 16
February 2023, that he considered the matter closed, Masimla received
a further email from him that evening in which he informeddg her that
management had become aware of statements from staff raising
concerns
about her interactions with them. She was advised that an independent
investigator would be appointed and that she should
remain away from
work on full pay while the investigation was arranged. Masimla
testified that she understood this instruction
as a suspension,
particularly as she had not requested leave and no leave was deducted
from her entitlement.
[43]
An independent external investigator, Mr S Bhana, was appointed to
investigate the allegations arising from the employee statements.
His
report recommended that disciplinary action be taken against Masimla.
She was subsequently issued with a notice to attend a
disciplinary
hearing and a charge sheet setting out various allegations of
misconduct. She testified that she was shocked by the
charges, that
she had not been provided with feedback on the investigation prior to
receiving the charge sheet, and that she believed
the charges
mirrored the allegations first articulated by Greeff in his version
of the February meeting minutes.
[44]
Although Masimla maintains that the company’s actions to
discipline her were at the instance of Greeff, she conceded that
she
could not fault Dondolo for deciding to accept the recommendations of
the independent investigator, that the company should
convene a
disciplinary enquiry.
[45]
The disciplinary hearing took place over eight days. Masimla pleaded
not guilty to the charges and raised concerns about procedural
fairness and retaliation for raising a grievance. The chairperson
found her guilty on some of the charges and recommended dismissal.
The employer accepted this recommendation, and Masimla’s
employment was terminated on 14 June 2023.
[46]
Masimla’s case, as presented through her evidence, is that the
termination of the romantic relationship with Greeff marked
a
decisive turning point in her treatment at work. She contends that
his conduct towards her became hostile and punitive thereafter;
that
the withdrawal of the Group HR Manager role was the first concrete
manifestation of this change; and that her subsequent attempts
to
raise concerns through internal processes triggered retaliation.
According to her, the solicitation of adverse employee statements,
the initiation of the investigation, and the disciplinary proceedings
were vindictive steps flowing directly from the breakdown
of their
romantic relationship and from her decision to report Greeff’s
conduct to senior management. She maintains that,
but for these
events, no disciplinary process would have been instituted and she
would not have been dismissed.
Evaluation
The
parties’ submissions
[47]
The plaintiff’s automatically unfair dismissal claim is brought
under
section 187(1)(f)
because it allegedly relates to
discrimination on the qrounds of
quid pro quo
sexual
harassment.
[48]
Masimla’s case is that the termination of the consensual
romantic relationship with Greeff marked a decisive turning point
in
her treatment at work. She contends that his conduct towards her
became hostile and punitive thereafter; that the withdrawal
of the
Group HR Manager role was the first concrete manifestation of this
change; and that her subsequent attempts to raise concerns
through
internal processes triggered retaliation. According to her, the
solicitation of adverse employee statements, the initiation
of the
investigation, and the disciplinary proceedings were vindictive steps
flowing directly from the breakdown of their romantic
relationship
and from her decision to report Greeff’s conduct to senior
management. She maintains that, but for these events,
no disciplinary
process would have been instituted, and she would not have been
dismissed.
[49]
Pioneer’s case is based on three pillars. First, they deny that
any sexual harassment occurred. The point out that the plaintiff
never provided evidence of any sexual harassment by Greeff after
their consensual relationship ended. Moreover, she never complained
to Pioneer that she was being subjected to such conduct. The
WhatsApp correspondence between herself and Greeff after the
relationship ended in April 2022 does not reveal any communication
emanating from Greeff that could be construed as behaving
vindictively
towards her
because
the relationship had ended.
[50]
Second, the defendants deny any causal connection between the alleged
conduct and the plaintiff’s dismissal. They maintain
that the
dismissal resulted from independent complaints lodged against the
plaintiff by multiple employees. These complaints were
investigated
by an independent investigator, who recommended that disciplinary
action be taken. The decision to discipline and
dismiss the plaintiff
was subsequently made by Mr Dondolo, whom it claims acted reasonably,
independently, and without reference
to Greeff or any alleged sexual
dynamic. On this basis, the defendants argue that the dismissal was
unrelated to any alleged harassment.
[51]
Third, the defendants deny being complicit in giving effect to
Greeff’s alleged desire to victimise Masimla on account of
their relationship having ended. Even if misconduct on his part were
to be established, which they deny they never made common
cause with
him, in helping him realise such an illegitimate aim.
Legal
principles
[52]
In identifying the type of unfair discrimination characterising the
underlying basis of her automatically unfair dismissal claim,
the
plaintiff correctly cites clause 5.2.6.2 of the Harassment Code:
‘
Quid
pro quo
harassment occurs where
a
person
such as an owner,
employer, supervisor, member of management or co-employee,
influences
or attempts to influence an employee’s employment circumstances
(for example engagement, promotion, training, discipline, dismissal,
salary increments or other benefits)
by
coercing or attempting to coerce an employee to surrender to sexual
advances
.’
(emphasis
added)
[53]
The
plaintiff referred to a couple of cases where the courts have found
sexual harassment to have occurred. In
Gaga
v Anglo Platinum Ltd and Others
[4]
the
complainant became the subject of repeated and unsolicited sexual
advances by a senior manager. These included explicit SMS
messages,
invitations of a sexual nature, and continued pursuit despite her
clear rejection. She reported the conduct to management.
The employer
failed to take effective steps to protect her and instead sought to
trivialise the conduct and normalise it as “flirtation”.
The harassment caused significant emotional distress and interfered
with her ability to work. The Labour Appeal Court emphasised
how the
manager’s offensive conduct was an affront to her dignity which
she had to endure for the length of her employment
[5]
.
It upheld the manager’s dismissal.
[54]
In
Makoti
v Jesuit Refugee Service South Africa
[6]
, the
complainant was employed by a non profit organisation. Her
direct supervisor subjected her to repeated sexual advances
and made
it clear that her employment security and remuneration were linked to
her submission to those advances. When she refused,
she was
marginalised and ultimately dismissed. The evidence demonstrated a
clear abuse of positional power and a direct link between
sexual
advances and adverse employment consequences. The Labour Court held:
‘
[54] The obverse
of granting employment benefits in exchange for sexual favours, is
when an employee is disadvantaged for not granting
them.
Clearly this is an impermissible criterion for differentiating in the
treatment of employees and will constitute unfair discrimination.
An
employee dismissed on such basis is clearly dismissed for an
impermissible reason and one that is unfairly discriminatory within
the meaning of s 187(1)(f) of the LRA read with s 6(3) of the EEA.
The former provision forbids dismissal on any unfairly discriminatory
ground and the latter provision identifies harassment as a form of
unfair discrimination if it is based on one or more of the
impermissible grounds of discrimination. In this instance, the
applicant was clearly targeted by Shivatu because she was a woman.’
[55]
Relying on
the authorities of
Kroukam
v SA AirLink (Pty) Ltd
[7]
and
SA
Chemical Workers Union and others v Afrox Ltd
[8]
,
the
plaintiff correctly characterises the determination of the onus in
such cases:
‘
Accordingly, in
order for the applicant to succeed in her claim of automatically
unfair dismissal in terms of section 187(1)(f)
of the LRA, she has to
produce sufficient evidence to raise a credible possibility that an
automatically unfair dismissal has taken
place. Thus, the onus is on
the applicant to show that the true reason for the dismissal is one
prohibited in terms of the law.
Once the applicant discharges the
evidentiary burden of showing that the dismissal was for an
impermissible reason, it is upon
the first respondent as employer to
discharge its onus of proving that the dismissal was for a
permissible reason as provided for
in terms of section 188 of the
LRA.’
[56]
In this
instance, on her version, the impermissible reason is that the
dominant reason for her dismissal was the result of
quid
pro quo
sexual
harassment. She correctly argued that in a case of automatically
unfair dismissal the plaintiff had to provide sufficient
evidence to
show a causal connection between the dismissal and the alleged
discrimination arising from the sexual harassment
[9]
.
[57]
In her heads of argument she articulated her view of how that applied
to her case:
‘
The applicant’s
evidence is that the main, dominant and proximate cause of her
dismissal was predicated on the fact that she
initiated grievance
proceedings against Mr. Greeff regarding his conduct towards her. Had
she not lodged a grievance concerning
Mr. Greeff, the first
respondent would not have instituted disciplinary proceedings against
her.’
[58]
She argues that the company essentially failed to deal with her
grievance appropriately and instituted disciplinary proceedings
against her at Greeff’s instance. Accordingly, she contended
that ‘
the disciplinary process did not arise because she had
misconduct it herself, but as punishment for having raised her
concerns about
Mr Greeff’s hostile conduct which arose after
the romantic relationship between the applicant and Mr Greeff ended.
’
[59]
Pioneer argued her case has two fundamental problems. Firstly, she
had accepted that at no stage had Greeff subjected her to any
sexual
harassment. Secondly, even if it assumed, albeit incorrectly, that
the company made common cause with Mr. Greeff against
her, there was
no evidence that it had done so in support of sexual harassment
conduct. Furthermore, she had agreed that it was
not unreasonable for
Dondolo to have instituted disciplinary action against her following
the investigator’s report.
[60]
What is striking about this case is the absence of any allegations of
sexual harassment of Masimla by Greeff, let alone of a
quid pro
quo
nature. The facts of this case could hardly be further
removed from the type of
quid pro quo
sexual harassment cases
exemplified by the
Gaga
and
Makoti
cases. A
striking feature of the case is that it was Greeff, who initiated the
end of the relationship, and there were later
communications from him
trying to curtail their communications after hours. There was no
evidence he then sought to revive the
relationship at a later stage,
but was rebuffed by Masimila, leading to him vindictively accusing
her of misconduct as an act of
retribution for fobbing him off.
Conclusion and Costs
[61]
In light of the analysis above, the plaintiff did not make out even a
prima facie
case of sexual harassment having occurred. From
that it follows her dismissal could not have been caused by her
resistance to such
behaviour. Consequently, her claim of
automatically unfair dismissal must fail.
[62]
Pioneer asked for costs on the basis that it should have been
apparent the case lacked merit. It is well known that the ordinary
rule is that costs do not follow the result, but that a party
pursuing a case without merit from one forum to the next might
attract
an adverse cost order. As this is the court of first
instance, and that the plaintiff has a genuinely held belief she was
unjustifiably wronged by her dismissal, I am not inclined to make a
cost award in this instance.
Order
1.
The Plaintiff’s claim that she was
automatically unfairly dismissed by the First Respondent under
section 187(1)(f)
of the
Labour Relations Act, 66 of 1995
is
dismissed.
2.
No order is made as to costs.
R Lagrange
Judge
of the Labour Court of South Africa
.
Appearances:
For the
Applicant:
--- R Matsala
Instructed
by:
--- Britney Theron Attorneys Inc.
For the
Respondent: --- FE le
Roux
Instructed
by:
--- Kaplan Blumberg Attorneys
[1]
No.R.1890,
gg 46056, dated 18 March 2022.
[2]
Originally
‘applicant’.
[3]
Originally
‘respondent’.
[4]
[2012] 3 BLLR 285 (LAC),
[5]
At
paragraph 43.
[6]
(2012) 33
ILJ
1706 (LC)
[7]
[2005] 12 BLLR 1172 (LAC)
[8]
(1999) 20
ILJ
1718 (LAC).
[9]
McLaughlin
v Independent Loss Consultants CC
[2012] JOL 29743
(LC) at para 43.