l
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THE LABOUR COURT OF
OpsoQ
In the matter between :
DR GABRIELLA LA FOY
and
DEPARTMENT OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
THE MINISTER: DEPARTMENT OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT
THE DIRECTOR GENERAL: DEPARTMENT
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
THE DEPUTY IWJINISTl;R OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT
~
f,:d IANNESBURG
Reportable
Case no: J1952/2017
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Heard: 11~ 18, 20, 21, 25, 26, 27, 28 April 2023 and 14, 15, 16, 18 August
2023.
Delivered : 08 September 2023.
Summary: Referral in terms of the Employ_ment Equity Act (EEA) -
harassment as a form of unfair discrimination based on arbitrary grounds. The
applicant failed to discharge her statutory onus. Unfair discrimination not
established. Managerial functions and activities do not amount to workplace
harassment. Decayed relationship with political heads incapable of amounting
2
to harassment. Individual acts of harassment are not ongoing in nature. Each
act or omission is subjected to the time frame provided for in the EEA. Failure
to refer each act or omission to · the statutory bodies for conciliation c>r
mediation timeously impacts on the jurisdictional powers of the Labour Court.
Where an act or omission amounts to an unfair labour practice as defined in
the Labour Relations Act, the remedy lies in the LRA. The provisions of the
LRA cannot be bypassed in order to build a case under the EEA. The inquiry
into the alleged harassment conduct, although viewed from the perspective <>f
the harassed employee, remains an objective one, regard being had to i1s
impact on the dignitas of the persona. Held:· (1) The claim for unfair
discrimination is dismissed. Held: (2) There is no order as to costs.
JUDGMENT
MOSHOANA,J
Introduction
[1] This is a referral in terms of section 10 (6) (a) of the Employment Equity A.ct
(EEA)1• Th& applicant, ..or Gabriella La Foy (La Foy} contends that the
Department of Justice Constitutional Development and Correctional Serviceis
(Justice) had subjected her to unfair discrimination in the form of harassme1nt
within the contemplation of section 6 (3)2 of the EEA. She contends that thie
sak:i unfaw discrimination is based on arbitrary grounds as listed in section 6
i1) of the EEA. After hearing the testimony of La Foy, Justice applied fc:>r
absolution from the instance. In a written judgment, this Court dismissed the
said application . 3
1 Act 55 of 1998, as amended.
2 Section 6(3} reads as follow: "Harassment of an employee is a form of unfair discrimination and is
prohibited on any one, or combination of grounds of unfair discrim ination listed in subsection (1 )".
3 La Foy v Department of Justice and Constitutional Development and others [2023] ZALCJHB 127;
(2023) 44 ILJ 1733 (LC).
3
[2] Although the trial ran for a substantial number of days, the dispute fulcrums
on a limited legal question, which is, are the litany of complaints sharply
hoisted by La Foy constituting harassment as a form of unfair discriminatio1n
on any arbitrary grounds? This Court heard evidence from three witnesse:s,
namely La Foy, who testified in her own case; Ambassador Madonsela (DG);
and Deputy Minister Jeffreys (OM) both of whom testified on behalf of Justice.
Background facts and evidence
[3] It is not the intention of this judgment to, in any formidable details, repeat the
evidence delivered by the witnesses who appeared before the Court. Tli.e
essential facts pertinent to the present dispute are that La• Foy was, effective
from 1 July 2016, appointed as a Deputy Oirector General: Constitutional
Development in Justice.
[4] I interpose to mention that the bulk of ttre events appertaining to the present
dispute are documented. They ar.e littered either in letters exchanged between
the witnesses, memoranda rout,ed amongst the relevant parties, reports and
outcomes generated by investigators or chairpersons and other related
documents. In the main, atl the witnesses that appeared before Court
delivered their testimony with reference to those documents. About five lever
arch files contained documents, which were liberally and at times aid
nauseam, retecenced. In order not to prolix this judgment, it is obsolete to give
a tuft rendition of the evidence delivered. Where necessary, this Court shall
quote ttie relevant evidence delivered, in the body of this judgment. Most <:>f
the rncidents as they occurred and recorded in writing are common caus;e
between the parties, however, the parties before me differed on the
interpretation of those recorded incidents.
[51 Given the onus issue, La Foy was the first party to deliver evidence. Whe!n
she joined Justice, the Department was faced with serious capacity issue:s.
Many of the posts in the staff establishment were vacant. In that financial year
Many of the posts in the staff establishment were vacant. In that financial year
of 2016/17, certain cost-cutting measures were introduced by the Treasury
4
Department. Those measures impacted a number of government
departments' (Justice included) ability to afford compensation for staff. Shortlly
after La Foy joined , Justice had to devise means by which the impact could be
ameliorated. A means was adopted, which saw the establishment of the
Human Resources Review Committee (HRRC). In the main, the task of the
HRRC was to address the capacity challenges in the Department by fin,t
identifying critical posts and recommending to the Deputy Director Gen~rail:
Corporate Services for the filing of those posts. Such that any branch tNtt
would require capacitation ought to go through the processes designed by the
HRRC.
[6] Pertinent to the dispute before me, like many other responsible heads of
branches, La Foy identified the need for capacify in her branch. Initially, she
took a view that since her branch was llnew", it ought to be exempted from the
bespoken processes undertaken at that stage by the HRRC. This view did not
meet with the DG's approval. Qy.,ing to that, sne presented a motivation to fiill
certain of what she considered to he critical posts. The report prepared by the
HRRC reflects which of the positions were approved and the manner in which
they were to be fi!ted. Because Corporate Services did not, on the version of
La Foy, fill some of fhe positions , La Foy took a view that she was being
subjected to harassment and was not supported.
[7] In the performance reviews, La Foy frontally raised those issues as having
impeded her from fully performing her duties. On La Foy's version, the
situation of capacitation remained a problem until she left the Department. In
the interim, issues of discipline emerged which saw her being presented with
what was termed audi alteram partem letters. The issues of discipline
emerged one after the other and as a result, La Foy felt that she wais
bombarded with letters of discipline. This bombardment she considered to be
harassment. Around the same time, investigations _were conducted by two
harassment. Around the same time, investigations _were conducted by two
government officials (Mr Nel and Ms C1ark). Both of whom produced their own
findings on issues investigated or considered by them. At a point, following
5
grievances lodged by nine officials against La Foy, as a precautionary
measure , she was transferred to another branch whilst the grievances were
being investigated. La Foy considered that precautionary transfer to amount
to a demotion and an act of harassment. Because she was made to report t:o
a junior employee, she considered this act as a demotion. After the
investigations, Clark suggested mediation which was not accepted by the nine
officials who had grieved.
[8] Over a period of time , La Foy felt that she was marginalized, her duties were
taken away from her, she was excluded from meetings and~ probation waIs
not finalised. Owing to all that, on 8 or 9 May 2017, she referred a dispute t:o·
the Commission for Conciliation , Mediation and Arbitration (GCMA) lamenting
victimization on arbitrary grounds. In the referral form, she alleged that the
dispute she was referring arose on 21 APril 2017. She annexed to the referral
form, a document setting out what she considered to be acts of harassment.
As a relief, she required (1) the employer to stop victimizing her and allocate
duties to her; and (2) that stie be compensated .
[9] The CCMA on 15 June 2017, attempted and failed to resolve the referreid
dispute through oonolliaUon. Commissioner Naidoo certified that thie
unresolved dispute may be resolved by this Court through adjudication.
Ultimate Y~ La Foy referred the unresolved dispute to this Court for
adjucfiaition.
[1 OJ As indicated earlier, she was a single witness in her own case. Briefly, hE~r
evidence before this Court was that she is an admitted advocate. She relate!d
to the Court her employment history and the qualifications she holds. Shie
came from Ethekwini and the Human Resources of Justice refused to pay for
her transfer costs. She referenced a number of formal documents like thle
SMS Handbook, Performance Agreement and certain sections of the Public
6
Services Act4 (PSA). When she joined there was no Personal Assistant (PA)
and an Office Manager in her office. She confirmed the lack of capacity issue
and the steps she took in an attempt to address the issue. On her version, Mr
Adams and the DG did nothing about the capacitation issue. In NovembHr
2017, she was placed on a precautionary suspension. Because there was no
support on the capacitation issue, the situation deteriorated and a conflict
arose between her and the DM.
[11] Following grievances lodged against her, she was transferred to a demoted
position. For a very long period, she was without any duties. 9ince hE~r
probation, she was never assessed . .Despite ner motivation for the filling of
posts , only one post was filled. Her leave appljcations were not approved and
she was threatened with disciplinary letters. She testified about the
international trips which she was not allowed to be part of. She considered
this conduct to be Ul)reasonable. She isagreed with the views expressed by
the DM on the international trQ route memoranda. Attending South Africain
Human Rights Council (SAHRC) meetings was her function. She got to know
about the letter from the DM througfi the investigators and ultimately got a
copy thereof through a Promotion of Access to Information Act (PAIA) 5
request. She attested to the strained relationship with the DM. She disputed
the contents of the letter of the OM and testified that the issues containe(j
therein we~ not ra;,ed with her by the DG. She testified that she waIs
emotionally affected and had to seek medical attent ion. She sought and was
ultimately given counselling.
· [12] During cross-examination, she testified that the challenge of not filling posits
occurred in all other branches. She confirmed that it was a department.al
process and was not directed at her only. She confirmed that resources were
made available to her although not on a permanent basis. On the international
made available to her although not on a permanent basis. On the international
travel issue, she agreed that the DM was not required to approve. She Weis
4 Proclamation no. 103 of 1994.
5 Act 2 of 2000 as amended .
7
not satisfied with the refusal to travel to the meeting of experts because of the
in-principle agreement she had with the DG. On the version that the decision
to transfer was a practical solution, she testified that the decision was not
substantively and procedurally fair and it amounted to victimization. On thie
question from the bench, she was asked of the reason why she was treated iin
the manner she testified, to which she answered she did not know.
[13) The DG testified on behalf of Justice. Briefly, he testified tllat he is currently
an Ambassador of South Africa to the Netherlands. He has been sinc:e
January 2020. He was the DG of Justice since May 2016. He ~tlined his
duties as a DG. He attested to the interaction betweeq the Ministry and thie
officials but testified that the reporting lines dp not change as a result of thie
interaction. He testified at length on the capa~tion issue and confirmed thle
cost-cutting measures and steps taken by the Department to address the
capacity issue. He testified around the ll()proval and non-approval of leave for
La Foy. He confirmed that leave days not taken could be taken at a later
stage or be credited back. He raised his concerns with the medical certifica1te
which sought to support a s-ick leave request by La Foy. Some of the leave
requests that were ~evoked by him were as a result of pressing work matters.
[14] He gave testimony around the audi afteram partem letters. As and whem
issues of disciptme are brought to his attention he acted immediately. The Nel
unit ~as the only unit with investigative capacity. He tasked it to conduct an
tnvestigation into allegations of ·misconduct. With regard to international
trw.;els, he testified that La Foy had no right to travel. Work demands and the
purpose of the travel dictate travelling. Further, he testified that the decision to
approve the travel delegation lies with the Minister. He testified about the
Universal Periodic Report (UPR) process and raised concerns as to why the
UPR was late.
Universal Periodic Report (UPR) process and raised concerns as to why the
UPR was late.
[15] During cross-examination, he testified that reporting is structured by way of
memoranda whilst interaction happens as and when the information is
8
required. He disagreed with the contention that La Foy was bombarded. In rt3-
. examination he testified that the preliminary allocation of funds as reflected in
one of the reports was not final, it was provisional and only indicative. From
the question of the bench, he testified that on international travels his role is
not only limited to financial issues but also he has a say as to which of the
staff members are best placed to travel.
[16] The DM also testified on behalf of Justice. He has been a DM of Justice since
2013. During 2016-17 he was still the DM. He got to know La Fgy through th1e
interview process. He testified about the interplay between the Departme1nt
and the Ministry. Such interplay does not affect re~ing lines. For time
immemorial, there was interaction between tt, e Minrstry ard officials of thte
Department and there was nothing untoward with sucj inter~ction. When La
Foy was appointed, he stopped interacting ~ith chief directors. He interacteid
with La Foy until he realised that he wa not receiving accurate reporting from
her. As a result, he restarted the interaction With the chief directors as he no
longer trusted La Foy. He testifi about his role in the drafting of the National
Action Plan (NAP) on discrimination. He however disputed that he said La Foy
would not go to internatio~ travel until she completed the NAP. His main
concern was the UP~. He confirmed that the decision whether a person
travels or not is that of the Minister and the Minister may not follow any
recommendations made. He testified about the international travels involveid
in this dtSf2ute and stated his reasons why some travels were not
recommended. He confirmed that he did express that he would work with the
four chief directors because he lost trust in La Foy. When officials join him in
meetings, they come to give support. In some instances, he did not need the
support of a senior officials like La Foy.
Evaluation
support of a senior officials like La Foy.
Evaluation
[17] As indicated at the dawn of this judgment, the key legal question in this
dispute is whether La Foy was subjected to unfair discrimination that is
prohibited on any arbitrary grounds. In order to answer that key question, this
9
Court must consider whether the litany of complaints hoisted by La Fc1y
constitutes harassment within the meaning of section 6 (3) of the EEA. Justic:e
contends that La Foy failed to show that there was harassment within the
meaning of the section. La Foy contends to the contrary. Once a finding iis
made that any of the alleged acts constitute harassment, the next question iis
whether that harassment amounts to unfair discrimination that is prohibited on
the ground (arbitrary) pleaded by La Foy. Owing to the above permutatton of
the issues, the first issue to be tackled is to define what harassmen rneans.
What is the meaning of harassment?
[18) In section 6 (3) of the EEA, the legislature only in.forms us that harassment iis
a form of unfair discrimination. However, that form of unfair discrimination ha1s
not been afforded any particular meaning. lr't an instance where the legislature
has not provided any technical meaning to a word , Courts often resort to the
grammatical meaning of the word. The grammatical meaning of the word iis
aggressive pressure or intimidatlpn. To harass means to trouble by repeate!d
attacks. Given the wide gram~ical meaning of the word, it became apparent
that some legal definition of the term is required. Section 54 (1) (a) of the EEA
empowers the Minister of Labour and Employment to issue any code of good
practice intended ~ provide employers with information that may assist them
in implementing the EEA . On or about 16 March 2022 , the Minister publishe!d
a Code of Good Practice on Prevention and Elimination of Harassment in thie
Workplace (Code) 6• It was in this Code that an acknowledgement was made
that the EEA does not define the term harassment.
[19] 111 clause 4 of the Code , the following is stated:
'4. WHAT IS HARASSMENT
4.1 The term "harassment" is not defined in the EEA. Harassment
is generally understood to be -
6 GG No. R1890 dated 18 March 2022.
10
4.1.1 unwanted conduct which impairs dignjty:
· 4.1.2 which creates a hostile or intimidating wort
environment for one or more employees or iis
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 o which
discrimination is prohibited in terms of section 6 (1} of
the EEA.' [Own emphasis]
[20] Regard being had to the totality of the evidence of La Foy, it is perceptible that
her complaints are about a hostile or intimidating work environment. The
Code states the following with regard to hostile· work envlfonment:
'4.6 Hostile work environment
4.6.1 A hostile work environment will be present where conduct
related to a prohibited ground impacts on the dignity of one or
more employees. This will be present if the conduct has a
negative,impact on the employee's ability to work and/or on
)
their personal well-being. This may be the result of conduct ()f
P.ersons in authority such as managers and supervisors or the
conduct of other employees.' [Own emphasis]
[21] This Court does acknowledge that the Code was introduced well after the
happening of the incidents complained of by La Foy. However, the Code
codifies the general understanding around the word. The Code sets out the
types of harassment. It is unnecessary to list all the types in this judgment.
. However, on the fair assessment of the testimony of La Foy, it is perceptible
that the workplace conducts she alleged related to the following, as outlined iin
clause 4.7.5 of the Code:
'(a) Conduct which humiliates or demeans an employee;
(b) Sabotaging or impeding the performance of work;
11
(c) Ostracizing 'Or excluding the ·employee from work or work-related
activities;
(d) Use of disciplinary sanctions without objective cause, explanat ion, or
efforts to problem solving;
( e) Abuse, or selective use of disciplinary proceedings ;
(f) Demotion without justification;
(g) Abuse , or selective use of disciplinary proceedings. '
[22) As indicated, the majority of the conduct alleged by ._La Foy ~se qefore ttie
promulgation of the Code . On her own version , her dispute arose on 24 April
2017. The previous Code7 focused on sexual harassment and did not provide
guidance on workplace harassment in general. The current Code was
influenced by developments in case law, statutes and iss~ dealt with in the
International Labour Organisation (ILO) Converition 190 (Convention) 8• Article
1 of the Convention provides a definition of the phrase 'violence and
harassment' . According to the article, the phras~ in the world of work refers to
a range of unacceptable behaviours and practices , or threats thereof , whethE~r
a single occurrence or repeated , that aim at, result in, or are likely to result in
physical, psychological , sexual or economic harm, and it includes gender
based violence and harassment. However , the term harassment was afforded
a technical meaning tn the statutes in pari materia, namely, the Promotion of
Equality and Prevention of Unfair Discrimination Act (PEPUDA) 9 and the
Protection from Harassment Act (PHA)10. Section 1 of PEPUDA defineis
harassment to mean unwanted conduct which is persistent or serious anid
dem~ns . humiliates or creates a hostile or intimidating environment or :is
calculatect to induce submission by actual or threatened advers;e
consequences and is related to .sex, gender or sexual orientation or
association with specified grouping.
7 Code of Good Practice on the Handling of Sexual Harassment cases in the Workplace GN 1357 of
2005.
8 Convention 190 was adopted on 21 June 2019.
9 Act 4 of 2000 as amended.
10 Act 17 of 2011 as amended.
112
[23] Section 1 of PHA defines harassment to mean directly or. indirectly engaging
in conduct that the respondent knows or ought to know causes harm c::>r
inspires reasonable belief that harm may be caused to the complainant. The
section defines harm to mean any mental, psychological, physical c:>r
economic harm.
[24] Given the grammatical meaning of the· word harassment, it is relatively easy for
an employee to deliberately avoid the useful and necessary dis.efnction betwee?n
the exercise of managerial powers and harassment. For examp:fe, a lethargic
employee may consider certain work instructions to amount to harassment.11 Jin
Maphanga v Department of-Justice and Constitutional Developmen't12, thiis
Court had the following to say:
'The purpose of the [EEA] is to eliminate unfair discrimination ... In law
harassment refers to a person 6ting ln a manner that causes thle
complainant to fear harm. Harm refers to any mental. psychological, physic.al
or economic harm. Buecl on this definition, it cannot be said that if a superic:>r
issues a work instruction, such superior is acting in such a manner that will
cause the juQjor to fear harm, It follows that based on his own testimony
Mapha~was not haras,sed. All what his superior did, as he should in a wo1rk
environment, was to issue an instruction. The fact that Maphanga ebullientty
peld a view that the instruction was unlawful does not morph the instructic,n
into@ harassment.' [Own emphasis]
(25] Thus, in my view, care must be exercised when complaints of work-related
harassment are considered by a Court or forum. A Court must be alive to thie
idiosyncrasies and over-sensitivities of individual employees. Courts and
dispute resolution fora with commendable distinction dealt with similar
situations in cases of alleged constructive dismissals. A similar approach ais
adopted in cases of constructive dismissal is warranted in matters of thiis
11 Maphanga v Department of Justice and Constitutional Development (Maphanga) [2023] ZALCJHB
11 Maphanga v Department of Justice and Constitutional Development (Maphanga) [2023] ZALCJHB
69; [2023] 6 BLLR 530 (LC). .
12 Maphanga supra at para 6.
·13
nature, pa,iicu!arly ·::.:here arbitrariness is alleged as a ground . A feeling of
being demeaned and or ;~umiliated is one that is subjective in nature. A
feeling that a work environment is intimidating or hostile is bound to be a
subjective one. It is for that reason that the objectivity of the conduct is viewod
from the subjective perspective of an employee. 64 years ago, the erudite
Schreiner AJ had the following to say in R v AMCA Services Ltd and a~er13
(AMCA):
The first test to consider is that which is generally regarded as the mc,st
important for the purpose of deciding whether a pel'$0n is a servant at
common law, namely, whether the employer (usiQg t_hat word in a colourle:ss
sense) has the right to control, not only the end to be achieved by the other's
labour and general lines to be followed, but the detailed manner in which the
\ -
work is to be performed.' [Own emphasis]
[26] The sentiments expressed in AMCA received an imprimatur from my departud
brother Webster J in Pretorius v Minister van Handel en Nywerheiar4
(Pretorius). In this matter, Mr. ~ rius, a public servant approached the Hi~Jh
Court to seek an interdict against the Director-General of the Department of
Trade and Industry. He clai.,med that the Director General and officials in the
department ware harassing and victimiz ing him by subjecting him to
investigatiOf}S and questioning in respect of a grievance he lodged against the
department. ~mongst the complaints raised by Pretorius were (a) leave
app"Hcation "'{as turned down; (b) protest against participation in the
instructions to raid; (c) failure to hold a disciplinary enquiry within one month
of suspens.ion; (d) failure to disclose the name of an investigation official; (1e)
annual leave of five days was refused; and (f) he was subjected to criminal
investigations. Having considered each of the complaints, the learm~d
Webster J dismissed the application with costs. Before reaching hiis
Webster J dismissed the application with costs. Before reaching hiis
conclusion and having placed reliance on AMCA and Smit v Workmen's
Compensation Commissioner15, Webster J stated the following:
13 1959 (4) SA 207 (A) at 212H-I
14 [2005) JOL 14393 (T).
15 1979(1)SA51 (A).
·14
'It is clear from the above that the services of the applicant are subject to
supervision, direction, control and interference by the respondent. Tlhe
applicant has no right to the relief he seeks. '16
[27] Strikingly similar to the Pretorius matter are some of the complaints raised by
La Foy before me. I am in agreement with the sentiments exi;_>(essed by
Webster J . The Court of Appeal of the Kwazulu Natal Division sitting in
Pietermaritzburg, in the matter of Mnyandu v Padayachi (M~ andu)17 had an
occasion to consider the meaning of the word 'harassment' as employed in
the PHA. In Mnyandu, the issue involved the sending of .an ·eman containing
allegations which were not true. The Court of. Appeal concluded that
harassment must be repetitive, oppressive or overwhe ingfy oppressive if it
is a single act and must be unreasonable in n$ture. Moodley J, writing for the
Appeal Court, reached the following findings, which felicitously resonate with
this Court in the present matter:
'In my view the conduct of the apf?ellant in sending the email may have bei:3n
unreasonable, as she alk>wed her emotions to cloud her perceptions, but I aim
not persuaded that her &ondl.Jct was oblectively oppressive or had the gravttv
[28] I fully agree that when considering the conduct complained of in a harassment
situation, the test 1-s one of objectiveness. The learned Raulinga J, sitting
alone, had an occasion to consider the meaning of the word harassment :as
employed in the PHA in the matter of Moos v Makgoba19 (Moos). In Moos, the
conduct complained of was one of placing a bucket under the tap when the
complainant was taking a bath. Raulinga J approved the view in Mnyandu to
the effect that the test must be objective. The learned Raulinga J reached the
following apt conclusion:
16 Pretorius supra at p 26.
17 [2016) ZAKZPHC 78; [2016] 4 All SA 110 (KZP).
18 Ibid at para 71 .
19 [2022) JOL 54225 (GP).
r ·•.
15
"Harm requires a more objective analvsis as opposed to the subjective natL!m
of "hurt". The respondent's conduct of placing a bucket under the tap may
have hurt the appellant. That is, it may have upset or offended her, which is
different from causing harm.20
[29] In full agreement with Raulinga J, this Court takes a view that La Foy may
have been offended; unhappy or saddened by the actions of the De.p&r!ment
officials as testified to by her, however applying the objective test and a -o
considering that the actions occurred in a work environmen it cannpt be saiid
that La Foy was harassed within the meaning of t7nfair discriminati<>n
contemplated in the EEA.
[30] In this Court, my departed brother Steenkamp J, in the matter of Shopri'fe
Checkers Ltd v Samka and others2-1 (Samka), per.s.uaded by Aarons v
University of Stellenbosch22 (Aarons), concluded that unfair discrimination
was not shown. In Aarons, the learned Waglay J (as he then was) stated that
an employee claim ing harassment must oo more than just make bald
allegation; he or she must clearly set out why the harassment amounts to
unfair discrimination. S.,Jdly, La Foy did not do more. When asked by the
Court as to why the dep~rtment was subjecting her to the conduct she
complained of, she, in retort, said "/ don't know". Clearly, such is not enoUfJh
from an employee staking harassment within the meaning of section 6 (3) ,of
the EEA As correc'1 held in Aarons, an employee must clearly set out in
evidence ~ the harassment amounts to unfair discrimination. A conduct is
arbitrary if it is based on random choice or personal whim, rather than any
reason or system. Thus, this Court expected testimony to support a random
choice or personal whim. Absent that, arbitrariness is not demonstrated . To
simply state "/ do not know" is not enough . Where a conduct complained of is
supported by work-related reasons or system, one cannot speak ,of
arbitrariness.
20 Ibid at para 13.
21 [2017] ZALCCT 64; (2018) 9 BLLR 922 (LC).
arbitrariness.
20 Ibid at para 13.
21 [2017] ZALCCT 64; (2018) 9 BLLR 922 (LC).
22 (2003] 7 BLLR 704 (LC) at para 18.
16
[31] In any event, as it shall be demonstrated later in this judgment, the acts
complained of are neither oppressive nor unreasonable. The position in South
Africa is not dissimilar to the position in Canada. In Toronto Transit
Commission v Amalgamated Transit Union23 , sole arbitrator Shime, dealiing
with a workplace harassment dispute defined abuse and harassment to
include the improper use of power and departures from reasonable OOflduct.
In another matter of Amodeo v Craiglee Nursing Home LimirecM. tlhe
chairperson of the Labour Relations Board (LRB), Mr Patrick Kelly, dealHQg
with a workplace harassment dispute remarked as follows:
'12. . .. The workplace harassment provisions de ... ~ ly apply to the
conduct of a manager that falls · in his or al work functicl.!1.
even if in the course of carrying ~ t that f u ction a worker suffE~rs
unpleasant consequences,
13. In Simcoe Country District School f3_oarcf-5 •• . a teacher complaineid,
among other th·~ j that one of his colleagues shouted at him in1 a
meeting. The Board characterized that behaviour as a single act of
rudeness that did not constitute workplace harassment. I find that the
allegation that the DiJector of Care shouted at the applicant in the
a private meeting with the applicant does not constitute1 a
course of vexatious conduct or comment.
As forJbe written warning , I fail to see how that can possibly constitt~
a workplace harassment. ..
16 ... The worst that can be said of what happened is that Ms. Heinz
made a blunt, unflattering assessmer-1t of the applicant's performance
and demanded in no uncertain terms that she fulfil management's
work expectations or risk discipline . Arguably, Ms. Heinz might have
utilized greater tact and sensitivity. But as I have stated. the realit y is
that sometimes the exercise of management functions - which is wti.at
Ms. Heinz was engaging in - results in unpleasant consequences ·[Qr
23 2004 Canlll 55086 (ON LA).
24 2012 Canlll 53919 (ON LRB).
23 2004 Canlll 55086 (ON LA).
24 2012 Canlll 53919 (ON LRB).
25 Parsons v Simcoe County District School Board2012 Canlll 395 (ON LRB).
17
workers. That does not necessarily translate jnto workpls~
harassme nt,.,' [Own emphasis]
[32] This Court shares the sentiments expressed in both Canadian casE~s.
Objectively judged , the complaints raised by La Foy amount to unpleasant
consequences of the exercise of management functions. Unpleasant as they
may have been to la Foy, they do not cause any demonstrable harm for tli ~
to cumulatively amount to a harassment that amounts to n unfair>
discrimination. Having defined what harassment mean , I ow turn to, the
issue of onus.
The issue of onus
[33] In law, onus means the burden of proof which requires the accuser to pro,ve
the case against the accused. In cas , La Foy bore the burden to prove that
Justice unfairly discriminatep against her. t or prohibition , La Foy places
reliance on the ground of arbitrariness . Section 11 (2) of the EEA provides
that if unfair discrimination is attegea on an arbitrary ground, the complainant
must prove, on a balance of probabilities that - (a) the conduct compla ined of
is not rational; (b) the conduct compla ined of amounts to discriminat ion; and
(c) the dis'f"iminatioo is unfair. 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 F.oy is undoubtedly an onerous and heavy one. As a point of departure, a
behaVIO:Ur is aaid to be irrational if it is not based on logical reasons or clHar
thinking. Diffe rently put, it is conduct that is foolish, idiotic and downri~Jht
stµpid . It is a prima facie unreasonable conduct. As it shall later be
d~monstrated, the conducts complained of in casu are far from being fooliish
by a proverbial mile. This being the first hurdle to cross, it must follow that La
Foy failed to discha rge her statutory burden of proof. She could not prove on
the preponde~ance of probabilities that any of the conducts complained of are
foolish , idiotic or stupid.
18
[34] Assuming for now, which assumption this Court is not necessarily making in
the ultimate end, that La Foy managed to cross the first hurdle, she still has to
show that the conduct amounts to discrimination. Discrimination is an act of
making distinctions. It is an unjust or prejudicial treatment of diffemnt
categories of people. Yet again the evidence tendered before this Court is 1far
from demonstrating discrimination. As indicated above, La Foy lmply
suffered from unpleasant consequences of the exercise of menagement
function. In my view, la Foy comes second best on this leg. he concedl d
during her testimony that the issue of incapacitation was not facitiQ her or her
branch only.
[35] A further putative assumption being made that the second htJrdle is crossE~d.
La Foy still has to show that the discrimination is unfair. It is accepted that the
notion of fairness is elastic and incapable of a speciric definition. However, as
pointed out, an employer exercises co rol and f terference at the workplace.
Later in this judgment, this Court shall co~r each of the complaints rais;ed
by La Foy. For now, this Court takes a firm view that no element of unfairneiss
has been demonstrated tn this trial. It suffices to mention that inasmuch as the
relationship between La F~ and the DM decayed over a period of time, such
ss. 0 the version of La Foy, as demonstrated by the
referral documents, tf'e dispute that this Court must adjudicate upon, arose ,on
24 Aprtl 2017. She referred that dispute for conciliation, as required by section
10 (2) oft~ EEA, on 9 May 2017. Howbe it, this Court benignantly receiv,ed
testimony about incidents that took place in 2016, shortly after La Foy
assumed employment with Justice. These incidents would as a matter of fact
have fallen outside the prescribed six months' period. Nevertheless , on her
own version, the dispute that was conciliated upon arose in April 2017. As an
annexure to the referral form, La Foy vaguely listed acts complained of and
annexure to the referral form, La Foy vaguely listed acts complained of and
deliberately failed to set out the dates of each incident. This Court must
assume that such a palpable deliberate failure was aimed at bypassing the
six-month legislated period. Had she disclosed the dates of each incident , she
may have been compelled to show good cause as required by section 10 i(3)
'
of the EEA.
19
[36) Axiomatically, this Court should decline to exercise jurisdiction over incidents
that were not properly conciliated upon as it appears to be the case in relati,on
to incidents that arose 6 months before 9 May 2017. Howbeit, this Court takes
a firm view that those incidents as testified to do not in any event amount to
discrimination, let alone irrational or unfair conduct. Mr Woud SC,
appearing for La Foy, despite an earlier ruling of this Court, attempted .an
argument that the conduct was ongoing and as such, there must be no cut,off
date. Reliance was placed on the decision of the Labour-~ ea1 Court (LAC)
in SA Broadcasting Corporation Ltd v Commissicm for Conciliation1 Mediation
and Arbitration and others26• To my mind, this decision ;s not of assistance to
La Foy's case. There, the LAC was dealing with the need to seek
condonation. The LAC held that where the alleged discrimination is ongoing ,
condonation is not necessary as the afleged unfair laoour practice, as it was
then , had no end date. The learned ~lay ADJP, as he then was, concluded
thus:27
'While an unfair labour. pr~ee ll.mfair discrimination may consist of a sinc;il§
act it may also be continuous, continuing or repetitive. For example, where an
employer selects an empoyee on the basis of race to be awarded a once-off
bonus this could possibty constitute a single act of unfair labour practice or
unfair discrimination because like a dismissal the unfair labour practiice
mmences aod ends at a given time. But, where an employer decides to pay
its empl.oyees who are similarly qualified with similar experience performing
similar duties different wages based on race or any other arbitrary grounids
th8Q notwithstanding the fact that the employer implemented the differen1tial
on a particular date, the discrimination is continual and repetitive. Ihe
discrimination in the latter case has no end date and is therefore ongoing and
will only terminate when the employer stops implementing the diffemnt
will only terminate when the employer stops implementing the diffemnt
wages. Each time the employer' pays one of its employees more than t:he
other he is evincing continued discrimination.' [Own emphasis]
26 [2009) ZALAC 13; (2010) 31 ILJ 592 (LAC).
27 Ibid at para 27.
.20
[37) With considerable regret, I disagree with the submission that the alleg;ed
harassment in this case was a continuum. On La Fay's version, the
harassment is constituted by various once-off acts on the part of Justice. Take
for example the alleged demotion which happened when she was placed on a
precautionary transfer. This Court fails to see how a demotion, once it has
happened, it has no endpoint. This is morelike saying a dismissal has no end
date. Section 1 O (2) of the EEA is perspicuous it refers to six months ~ the
act or omission. Additionally, the refusal to be part of an imemational triJ?1
revocation of leave, denial of resettlement benefits, being sut>te· •ctE~
'forensic investigation', not being assessed for probation puc oses and other
acts are once-off incidents incapable of ongoing character. When one speaks
of them one cannot say they are happening but one mu say they happenEid.
Accordingly, La Foy bore the overall onus to prove at the alleged acts,
which fall within the legislated time peri6d witti regard to their happenings. As
it shall be demonstrated, La Foy failed to discharge her onus to prove that the
conducts were irrational, discriminatory in an unfair or pejorative manner and
The alleged acts or inci~ts of harassment considered,
[38) Before eac of the acts or incidents are considered, it may be important to
define what a cause of action means. The acts or incidents listed in the LRA
Form 7.11 (Form) , were repeatedly dubbed as acts of discrimination. The
conC!}Pt of cause of action was defined by Lord Esher, MR in Read v Brown28
to 15e:
'Every fact which it would be necessary for the plaintiff to prove, if traverse~.
in order to support his right to judgment of the court. It does not compriise
every piece of evidence which is necessary to Prove each fact, but every t.act
which is material to be proved to entitle a plaintiff to succeed in his claim.'
2s (1888) 22 QBD 128 at 131.
:21
[39] A cause of action can mean that particular act on the part of the defenda1nt
which gives the plaintiff his or her cause of complaint. Elsewhere the conceipt
was seen as ordinarily used to describe the factual basis, the set of material
facts that begets the plaintiff's legal right of action. 29
[40] La Foy begot a legal right of action from the provisions of the EEA. :n, EEA,
flowing from the Constitution of the Republic of South Africa, 1996, prohib,' \
unfair discrimination. The right that La Foy has is that of 'flOt being unfai1rly
discriminated against. Her complaint is and can only be tlia she SQOuld not be
unfairly discriminated upon. In other words, a fact that La Foy r ust prove to
obtain relief under the EEA is that she has beer unfairly iscriminated upon.
[41] Reverting to the definition of a cause '1f action, tJ.:,e pral'libited grounds, in this
instance, any arbitrary grounds, constitute a piece of evidence necessary to
prove the cause of action - unfair ~imination. Put differently, in the
absence of any of the grounds Nsted or unlisted differentiation lacks leg1al
basis to constitute an actionable-claim. 30 There can never be a legal claim of
unfair discrimination if · e g-roonds are not alleged to be any form. of ,
differentiation. Therefore , a ground on its own is not a separate and distinct
cause of action. In this regard, the facta probanda is the unfair discriminatil:>n
and the facta probantitJ is the alleged ground.
[42] In the Form, before listing the offending incidents, La Foy stated the followin!g:
'The Department of Justice and Constitutional Development has made itself
guilty of harassment on arbitrary grounds; victimization; abuse of power; and
abuse of process by its continued conduct towards me.' [Own emphasis]
29 See: Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) and Duet and Magnum Financial
Services CC (in liquidation) v Koster[2010] ZASCA 34; '[2010) 4 All SA 154 (SCA).
Services CC (in liquidation) v Koster[2010] ZASCA 34; '[2010) 4 All SA 154 (SCA).
30 See Sethole and others v Dr Kenneth Kaunda District Municipality [20171 ZALCJHB 484; [2018] 1
BLLR 74 (LC).
:22
[43] Thus, the only actionable claim is that of harassment on arbitrary grounds,. I
shall now consider each of the listed acts complained of. In the penultimc1te
paragraph of the Form, La Foy stated the following about the listed acts:
'The combined result of the department's actions and the manner and timing
of the many notices and communications that I have been served,, bc)th
formally and informally, the relative power and status of the partie,e
behind the services of the various notices.: have had the combined resu of
placing me under an enormous amount of pressure. The withflolding of
resources, withholding of benefits and the threats of di
0
1QHnary actie>n,
multiplication of charges and the unlawful threaJ of sus~ si amount to
intimidation, victimization. harassment, abuse of process and gross abuse of
power.'
(a) Items 1-6 of the Form cumulatively a100unts to what may be termed lack of
administrative support and resources l!ljlegation (Capacity issue).
[44] It became common cause before me that when La Foy joined the branch of
constitutional development, t~ branch was, like many other branches in
Justice, understaffed. It had a number of vacant positions . It also became
common cause that,.in the financial year of 2016/17, the National Treasury
had put in place some aulterity measures . Such measures had an impact ion
the issue of human resources reward across the entire Department as well as
other governlllEft1t departments. The DG testified at length that a committ,ee
tasked to review positions across the Department was put in place. La Foy
herself wrote a motivation for resources in her branch. Given the financial
constraints , the HRRC was tasked to only consider filing what was considered
to be critical positions.
[45] La Foy complained that she did not have an office manager and a PA in her
office . The uncontested evidence is that a resource was transferred to her
office through the HRRC processes. It -is also uncontested that La Foy herself
office through the HRRC processes. It -is also uncontested that La Foy herself
assisted that resource to be transferred elsewhere. Accordingly, the
Department cannot be said to have acted irrationally or in an oppressive
23
manner. The situation that occurred in the branch of La Foy was not dissimilar
to the situation of other departments. The DG testified that his office was in
need of the head of office but due to the HRRC processes, that position was
not considered to be critical. That being the case, this Court fails to
understand how the lack of resources and capacity could constitute
harassment in the circumstances where a number of other branches suffer,ed
the same fate . There were genuine operational reasons why branches weire
denuded of a full staff complement as per the adopted st~ establishment.
That being so, it can never be said that the actions of the DSP.artment in
response to austerity measures amounted to a whimsical act
[46] The conclusion this Court reaches is that the co duct of Justice whien
objectively viewed does not amount to harassment within the meaning of
section 6 (3) of the EEA. The cardinal question is what harm did La Foy suf1fer
as a result? In the Court's view, none was shown to have been suffere!d.
Properly considered , placing atusterity measures is tantamount to a SE!lf
inflicted harm. A department funct,Lons optimally if it has resources sufficient to
cater for its staff establishment If there was any harm by not filling critical or
non-critical posts , Justice, a$ opposed to La Foy and her branch, was inflicting
harm onto itseff. Granted, as a new employee of Justice , La Foy was eat1er
and, understandably so, anxious to prove her worth to Justice. The lack of
res/ roes is arguabJy a source of irritation to any employee with such .an
anxiety and eagerness. However, such an irritation does not transmute into
harassment in legal terms. Additionally, the act of being incapacitated, even if
it could be viewed as harassment, which it is not, in the Court's view, it is not
one that is arbitrary. It does not prejudice La Foy in a pejorative sense , nor
does it impact on her dignity as a person. In Ndudula and others v Metrorail -
Prasa (Western Cape}31 it was held thus :
Prasa (Western Cape}31 it was held thus :
'The crux of the test for unfair discrimination is the impairment of human
dignity or an adverse effect in a comparably similar manner, not the
classification of the ground as listed or unlisted as is evident from the
31 {2017] ZALCCT 12; [2017] 7 BLLR 706 (LC) at para 73.
:24
quotation from Harsken. The constitutional distinction between listed and
unlisted grounds affects only the burden of proof and nothing else .. .' [Own
emphasis]
[47] With regard to the lack of capacity or resources conduct, there is 1no
impairment of human dignity which adversely affected La Foy as a person in
any comparable manner. For an act to be arbitrary and actionabfe, it ust
share commonalities with one or more of the grounds listed iA sec ·on 6 (1) of
the EEA. The Constitutional Court in Hoffman v SA Airways3'2 cope~ thlat
the determining factor regarding the unfairness of discrimination ' its impact
on the person discriminated against. La Foy admi d that the limitations
placed on the provision of resources were not aimed and .directed at her as; a
person. Therefore, it is difficult for this Court to accept that the capacity issiue
impacted on her as a person or impaired her dignity. ln a work environme1nt,
an employee who is deprived of resources to perform optimally, has a perfect
defence should an employer qu._estion her performance. The worst that could
have happened to La Fo is f r her to face dismissal due to poor wcirk
performance. On her own version, when a performance assessment was
conducted on her, she highlighu,d the issue of lack of resources. At no staige
did she face allegations of poor performance.
[48) Mr Woudstra referred the Court to two LAC cases; namely; Naidoo and others
v Parliament of the Republic of SA33 and Minister of Justice and Correctional
SeNices and others v Ramaila and others34. Both these cases confirmed that
arbitrariness must be related to the impairment of fundamental human dignity
;n a comparably serious manner. As the Labour Court, on application of tlhe
stare decisis principle, I am bound by these two decisions. An attempt was
·,~ ;tade • by Mr Woudstra to persuade this Court to depart from the principle
~
established by these two cases. He sought to do so by placing reliance on two ' . .
32 [2000) ZACC 17; 2001 (1) SA 1 (CC).
32 [2000) ZACC 17; 2001 (1) SA 1 (CC).
33 [2020} ZALAC 38; (2020) 41 ILJ 1931 (LAC).
34 [202 01 ZALAC 41 ; (2021) 42 ILJ 339 (LA9).
:25
scholarly articles.35 This Court remains unpersuaded. The apogee of La Fo)l's
submission is that since Justice has failed to provide her with support aind
assistance, which was necessary for her to discharge her functions, she has
been harassed in a manner that constitutes unfair discrimination . With
considerable regret, regard being had to the evidence delivered on tlhe
capacity issue, this Court crosses paths with such a submission.
(b) Failure to pay resettlement costs in terms of the applicable pre ript11•
[49] La Foy had included in her case before me a civil claim for rese~ Rent cosits.
This civil claim was wisely jettisoned , at the commencement of the trial.
Accordingly, this conduct shall not be consider$d in. any deta~f whatsoever in
this judgment. Suffice it to mention that it came short of harassment within the
meaning of section 6 (3) of the EEA- nevertheless. La Foy contends that
failure to pay what she refers, to as a benefit amounts to a hostile working
•.
-. environment within the meaning of cla~ 4.6.3 of the Code even if she dlid
not receive the benefit. There ls no merit in this contention. In the Court's
view, La Foy is faced ,vith two insurmountable quandaries in this part of her
case. The first. of which is that the failure to pay the said benefit occum~d
around November 2016. On her own version, the dispute subjected to
conciliation arose •OA 2 ~rH 2017 . The second of which is that in terms of
section 186 (2) (a) of the LRA, a dispute relating to provisions of benefits
amounts to an unfaiJ labour practice. In terms of section 191 (1) (b) (ii) of tl1e
LR.A. such. a dispute must be referred to conciliation within 90 days of the a1ct
or omis-skm. Failure to pay a benefit is an unfair labour practice as opposed to
an act of harassment. It cannot be said that failure to pay a benefit impacts on
tne dignity of an employee and has a negative impact on an employee's ability
to work or personal well-being. If La Fo.y was aggrieved as she now claims to
to work or personal well-being. If La Fo.y was aggrieved as she now claims to
be, she had 90 days from November ,2016 to refer a dispute and allege unfair
.labour practice. It does not accord to her to sit idle or adopt a supine approa1ch
35 Prof D du Toit , 'Discrimination on an Arbitrary Ground and the Right of Access to Justice', (2021) 42
ILJ 1 and Kamalesh Newaj , 'Defining Discrimination on an Arbitrary Ground: A Discussion of Minister
of Justice & Correct}onaf Services & others v Ramaila & others (2021) 42 ILJ 339 (LAC)', (2021) 42
ILJ 1405.
.26
and hope to attempt a discrimination case at her leisure. Inasmuch as
grammatically, harassment is wide to encapsulate what fits the definition of an
unfair labour practice, it cannot be allowed for an employee to bypass the
available legal remedies provided for in the LRA. This Court begrudginnly
accepts that an employee may have two or more causes of action. ,~n
employee may choose to raise an unfair labour practice route and still r:emain
with an unfair discrimination claim. In casu, La Foy did not engage in a choice
exercise as it has happened in other instances36. She simply laid 5'Jpine ai d
surreptitiously, as it were, raised the complaint and alleged t~ t it arose on :24
April 2017. Accordingly, this Court is not satisfied that La f~was harassed in
a manner contemplated in section 6 (3) of the EEA. Her claim on this front is
bound to fail.
(c) Failure to pay the benefits of transferring eJnployee as advised by the Public
Services Commission (PSC).
[50) This conduct is linked to the one dealt with above. Similar sentiments a1re
expressed in this regard. Additionally, it must be stated categorically that the
role of the PSC is to, amongst others, investigate grievances of employees in
the public service concerniflg official acts or omissions and recommend
appropriate remedies. In an instance where a government department fails to
accept and action the recommendation .of the PSC, an employee, La Foy in
this instance has, as an effective legal protection, the right not to be subjected
to unfag labour practices (sectien 185 (b) of the LRA). Accordingly, a
government department is nof bound to accept the advice of the PSC to the
point that the failure to accept a recommendation constitutes any form of
actionable harassment. On this front too, La Foy must fail.
(d) Refusal to allow international travel.
36 See Ditsamai v Gauteng Shared Services Centre (2009) 30 ILJ 2072 (LC).
:27
[51] La Foy's case is predicated on four international trips (Gambia , Togo, Addis
Ababa and Geneva). As an opening gambit, it is common cause thtat
participation in international trips is not a guaranteed right of any employcae
and whether an official travels or.not, it is the S(?le prerogative of the Ministt~r.
The process of initi~ting . _travel takes the form of the submission of
memoranda. The process~s , r~lated . to the four international trips are well
documented in so far as the reasons and purposes thereof. Accort;li-ngfY., it is
unnecessary to repeat all of that in this judgment.
[52] The apogee of La Foy'.s case is that the reasons advanced by the DG and or
the DM in any instance of travel related to the four t~ are unreasonable aind
irrational when they did not support her travel. Before any COl'l$ideration m;ay
be given to rationality, the first hurdle to cross is wheth r unfair discriminatic:>n
is involved or not. This Court firmly takes ~ view that ailure to support a tJrip
in the course of executing work-related functions cannot amount to a form of
unfair discrimination. If the DG decides not to release a resource within a
Department, he is exercising his nctions as the head of the administration of
Justice. Unfair discrimination is a.p:reJudicial treatment of people. That beilng
the case, it cannot be so t:!lat when a DG and or a DM does not recommend! a
travel, ~n employee is subjected to. prejudicial treatment. Nevertheless, tlhe
decision maker, the Minister, is entitled to overrule any recommendation. Ila
Foy herself had recommended that an official must not be part of tlhe
delegation because a department of women was represented. Surely she was
not subjecting that employee to any form of harassment. The reasons slhe
advanced for the recommendation to exclude that employee was operational
ang non-whimsical.
[5J} In any event, this Court takes a view that the reasons advanced by the DG aind
[5J} In any event, this Court takes a view that the reasons advanced by the DG aind
the DM in not recommending the travel are all not whimsical. Whether La F,oy
agrees or disagrees with the reasons, it is neither here nor there. With regard to
rationality, the Constitutional Court ·jn Law Society of South Africa and others v
28
President of the Republic of South Africa and others37 (Law Society) . In a much
more perspicuous and pronounced terms, said:
'The proposition in Masetlha might be seen as being at variance with the
principle of procedural i~ri;ltionality laid down in both A/butt and Democrc1tic
Alliance. But it is not so. Procedural fairness has to do with affordi~ a pairty
likely to be disadvantaged by the outcome the opportunity to ~ J.X:9P€1rly
represented and fairly heard before an adverse decision is r$rlldered ... 1iihe
latter [procedural irrationality] is about testing whether, or. ensuring that thme
is a rational connection between the exercise of power in <,elation to both
process and the decision itself and the purpose sought to be. achieved
through the exercise of that power.'38 [Own emphasis!
[54] The learned Justice O'Connor in Baltimore Gas & EJectric Co. v Natural
Resources Defence Council lnc39 , relying on Vermont Yankee Nuclear Power
Corp v Natural Resources Council lnc:W stated the following, which ap1tly
explains the concept of rationality:
'Administrative decisions should be set aside in this context, as in every other,
only for substantial pr~ edurai or substantive reasons as mandated by statute
... not simply because the court is unhappy with the results achieved ...
A reviewing court must remember that the Commission is making predictio1ns,
within its area of special expertise, at the frontiers of science. When
e)(amimng this kind of scientific determination. as opposed to simple findings
of fact. a reviewing court must generally be at its most differential." [Own
emphasis].
[55] The fact that La Foy is unhappy with the reasons advanced by the DM and
the DG and that she bickers with them is palpable. When it comes to
37 [2018] ZACC 51 ; 2019 (2) SA 30 (CC). ·.
38 Ibid at para 64.
39 462 U.S. 87 ( 1983) at 97 and 103.
40 435 U.S 518 (1978) at 558.
29
rationality, the. q:uestion is not whether there is agreement or not but whether
there is a rational connection with the purpose and power. Clearly , the DG as
the head of administration is entitled to oppose any reduction of resourc:es
albeit for a limited purpose , where such deduction would jeopardize t:he
optimal functioning of the administration under his cpntrol. Similarly, a politi•cal
head of a department is entitled to raise concerns of service delivery to t:he
people who put him in offic~. Such .cqncerns are not whimsical at al!.
[56] It is an incorrect submission to state that the DG and the ~ efiJSed la Foy
travel to work-related trips. If anyone did, it was the Mirrister. No allegation
was made and proven by La Foy thatthe refusal by the Minister constitutes
actionable harassment. Accordingly, La Foy must fail on tQ-ts front too.
(e) Cancellation and withholding of leave
[57] On this part of the case, La Foy laments on the issue of sick leave in April
2017 and revocation of leave before 3 April 2017. With regard to sick leave ,
the DG as head of administration was legally entitled to quest ion and also not
accept a sick certificate t'hat does not fully justify the absence of an employE!e.
One of the statutOfY financial duties of the DG, in his capacity as an
accounting officer, is to avoid wasteful and irregular expenditure. In terms of
section 22 (5) of the Basic Conditions of Employment Act (BCEA) 41 an
em?19Yer is obligated to pay an employee on sick leave, however in terms of
section 23 of the BCEA, th~t obligation is .avoidable. If an employee fails to
produce a medi9al certificate stating that an employee was unable to work for
th~ duration of absence on account of sickness or injury.
[~8] Given the fact that it is an employee who would benefit from being paid even if
he or she did not perform work due ,.to alleged illness, this Court disagrees
with a submission that the DG was duty _bound .to make follow ups over the
with a submission that the DG was duty _bound .to make follow ups over the
authenticity of the prima facie que~tionable medical certificate. Therefore , in
questioning and not accepting the medical certificate, the DG was performing
4 1 Act 75 of 1997 as amended.
30
a mana~e~ial fu~ction and his actions do not amount to harassment within the
meaning of the sectiqn.
[59] With regard to revocation of leave, section 20 (10) of the BCEA does provide
that annual leave must be taken in accordance with an agreement or at the
time determined by an employer.' Where there are pressing operational
matters, an employer may ·revoke, ·as ft ·were, the taking of leave, ctS I~ as
an employee does not-forfeit· those revoked days, which was tl1e e•e with ta
Foy. In Member of the Executive Council for Health, North West Provincei v
SA Medical Association and:another42, the Court confirm~ tnat, in order to
take leave, the permission- and approvai of an employer is requireid.
Accordingly, where approval is not granted, it cannot be sa~d that an employer
is harassing an employee. within the meaning of the implicated section. This
Court disagrees with a submission that revocation of leave should be
regarded as a form of discrimination. Accordipgly , La Foy must fail on this
front.
(f) Taking away work functions, e2-.C~ her from meetings and taking away her
repartees· for them to report to thf) OM.
[60] In the world of work t reQortrng js a formal and structuroo process. lnteracti-on
between co--workers or other officials cannot amount to reporting and it
practically crisscrosses· between the reporting lines. La Foy herself h:ad
interact~ wi~ the OM but she did not consider herself to .be reporting to the
QM. Bo the OM and the OG disputed any assertion that certain employees
r~orted to the DM. It became. co111mon ~use that the hierarchy in Justice is,
from the top down to the leve.I pf a chief director, as follows: Ministry to DG to
DDGs and to chief directors. The practice in Justice . has been and continues
to be that the OM interacts ~ith offici~I~ when he needs . any information
arising from the portfolio under his political leadership. One of the structured
ingredients of reporting in :the world of work is an agreement on key
ingredients of reporting in :the world of work is an agreement on key
performance .indicators (KPI) .. and assessment .of those over a period. No
42 [2021) ZALAC 38; (2022) 43 ILJ 134 (LAC).
31
evidence was led to indicate that DM had KPls with the chief directors. DM
testified that because he was no longer receiving accurate information from
La Foy, he preferred to obtain information from the chief directors as he did
before the appointment of La Foy. Such cannot constitute harassment. With
regard to support from officials, DM testified that he shall not take away a
senior resource to provide support ·armeetings . The reasoning of the DM is
unassailable on any legal basis. On this' front too, La Foy must fail.
(g) Bombarding her with processes.
[61] One of the elements of control over cin employee is the right of an employer to
discipline an employee. All the steps that were taken by the 00 to deal wiith
discipline are justified. As and when an act of miscondt.tct arises, an employer
is obligated to take prompt and appro~ e steps. In order to create a storm
out of a teacup , La Foy over-sensationalized the fact that incidents following
each . other were dealt with by. ~he DG a,.s and when they arose. There is
nothing to ride home about that djsciplinary incidents followed each other for a
six-week period . In terms of seclion 186 (2) (b) of the,LRA, it is unfair labo,ur
practice to be subjected to any unfair disciplinary action short of dismissa l. As
indicated . earlier , La Foy had a right not · to be subjected to unfair laboiur
practice. If thrs 'bombaroment' _constituted any form of an unfair laboiur
, .
practice, La Foy was well protected by the LRA.
[62] It does not aocord for La Foy to simply ignore the protection and the remedi,es
provided for in the LRA and conveniently. choose to allege harassment. Thlat
which she regards as bombardment was aimed at protecting her interests as
an employee. Rules of natural justice . - audi alteram partem - require hearilng
the other side before an adverse .finding is made. This .Court disagrees with a
submission that dealing wi_th disciJ?line, which. La Foy termed bombardmeint,
submission that dealing wi_th disciJ?line, which. La Foy termed bombardmeint,
created a hostile and intimidating ··working environment. The DG was
:· .
exercising manageria l f~nctions,._ as .such. no· harassment within the meaniing
of the section occurred in this (~gard. Similarly , La Foy must fail on this one.
32
(h) Witch hunt investigations
[63] Investigation of any form of allegations is the order of the day in the world of
work. Whether an investigation is dubbed "forensic" or misconduct
investigation, it is. of no moment._ A forensic investigation is a practice of
legally establishing evidence and facts for presentation at any forum. The
. . . . .
. . . .
term is applied to n,e~rly_ all_ i_~vestigati~ns. Most p~pl_e associate fo~s iics
with crime scene inve~tigations. La_ ~oy again creates _a storm •. a teacup ahd
refers to the Nel investigation into allegations of misconduct as a "massive" . . . . .
forensic investigation. Regard being had to what the DG requested the unit of
Nel to do, it cannot · be said . that Nel conducted a massive forernsic
investigation. His report is labelled to be one that investigated allegations of
misconduct. The fact that Net interviewed La f oy in the presence of a number
of people is of no moment. The fact that La FQy w" ultimately cleared of
some of the allegations by Advocate Moroka SC is also of no moment with
regard to the alleged harassment. SimilarJy, the fact that Justice attempted a
costly review cannot cauS:e any humiliation or: harassment. The conclusion
this Court reaches .. is that this bQmbardment allegation is nothing but an ov1er
sensationalized exercise by La Foy in order to _create smoke and mirrors on
the harassment isstJe. Equalty, La Foy must fail on this front.
(i) Transfer, demotion and pro,bation
[64] l~sues relating ~o probation and. de_motic;m amount to an unfair labour practice
m terms of $6?Ction 18_6 (2) of ~he LRA. Issues around these allegations aro,se
in the e~rcise of n;ianage_rial powers. The DG wa.s at some.point faced with a
challenge where .nine officials lodged. grievances against . La Foy. In order to
exercise managerial .control · over the ·· challenge . t.he .. · DG applying his
managerial. skills . opted to invoke: the, provisions of the SMS Handbook in
managerial. skills . opted to invoke: the, provisions of the SMS Handbook in
order t~· aff~;d _La Foy an opportu~i.t{to ._state her position. The fact that he
called into aid the provisiq11s otthe SMS.:'Handbook into a situation that is . . ' . ' .
dissimilar is of no moment. ; Wha.t re.mairys i~ that La Foy was afforded an
opportunity to deal witH what h,ad s~rfaced. lf'1disputably, the [?G adopted! a
33
practical approach to the challenge he faced as a manager . He had the option
to transfer all nine employees · out of the already limping branch or transfer La
Foy to another branch. La Foy herself at some point suggested a transfer
when faced with challenges.
[65) La Foy -considered· reportinfto· a~ l:P10 level' employee as a demotion. Even
if this Court were to· consider a transfer .. ·as a detnotion ,· it. is not one wtthout
operational justification . The justification is that the DG considered ahd
rejected, as it" were, an optib~--~rremovi119 nine officiats Otlt ~ an already _
incapacitated branch . . That optio·n ·would _.not·· have ~ lded acceptable
administrative adva'ntages. Nevertheless, . if . La·. Fo was a~ieved ·by. the
alleged demotion, she was armoured by. the LAA As to w y she did not
protect her rights in that regard, it remains enigmatic.
(j) The Clark report and requests for documentatioo.
[66] T~is is the most startling fo~m of harassment alleged by La Foy. Clark was
tasked to investigate allegations ag-air)st La Foy. Nine of her juniors weire
aggrieved by her alleged conduct. Clark was tasked to establish the verac:ity
of the allegations by the nin~ juniors. The fa~ that La Foy was not provid,ed
with copies pf the Qrievances does . n~t mean harassment in any shape or
form . It is, with respect to La Foy, preposterous to the extreme to suggest that
this refusal impaired her dignity. as a person.
[67] Jt is of cours.e concerning to t,~is. Court. that this complaint was not listed as
one of the acts of harassment refer.red to.the .C<;;MA for: 9onciliation. It must be
so that this act oonstitL1tes an_ alle~ed · act of harassment which was , not
subjected to the conciliation and or rnediato~ proc.ess. This Court lacks
jur\sdiction over . a . dispute-. that .has riot been 's~bjected to conciliation.
· : .
Inasmuch as harassment is a form of ~nfair discrimination, where acts that
constitutes the .alleged ha_rassme_nt are . not , subjected to a compulsory . . . . .
constitutes the .alleged ha_rassme_nt are . not , subjected to a compulsory . . . . .
conciliatory process ,. this Court lacks. jurisdiction over such acts. HarassmEmt
pegged on this act must fail.
34
(k) Failure to consider grievances
[68] La Foy lodged about four grievances. On her version, all these grievanc:es
were ignored -by Justice. La Foy considers this inattention to amount to
harassment. This is perplexing, in the circumstances where the ~rievance
Rules in the· Public Service ·allow for a ·further escalation · of a grievance. Yet
again, this act of harassment was not subjected to the com . Jsory conciliatory
process. It has not been listed by· La· Foy· in' the referral docume
Conclusions
[69] Key ingredients for legislation aimed at ettrninattng wor~lace harassment a1re
the right to dignity, equality and fair lapour praqices. Thus, harassment must
be an act that threatens all or one of these key ingredients. Managerial
"i"'·
functions generally' do :'~bt th'reaten dignity, equality and fair labour practiCE~s.
Having considered 'the complaints of La Foy cumulatively and objectively .as
fully discussed earlier in this judgment, this Court fails to observe any
l • • ,. •.
harassment as legaUy defined. It is indeed so that the.alleged conduct ou~1ht
to be ass.essect Qbjec~ly ~m the perspective of an employee who alleg,es
haras~ment. The primary focus of the inquiry as to whether there has be,en
harassment , is on the impact of the . conduct · on the employee. The employcee
in this instance should be a bonis paterfamilias (reasonable person). Wherei a
hostile ork environment' is alleged, key is the imp~ct on the dignity of ,an
empk>yee as a person. This Court has already ack~owl~~ged that allegations
and counter-allegations between the OM and, La Foy led ·to 'the perspicuous
decay of the relationship • ,~etwe~r) th~,n. How~\/er,1, thi~. indisputable decay
does not, in my view, transmute into ~arassmenf ine (?M gave. his reasons
why h.e no longer wi~hed to.work with. L~ Foy. In the present proceedings, it is
not the function of this~ Court :tod_~quire into the reasons p_rovided by the DIM.
There was no contractual ·relationship between the · OM and. La Foy at tlhe
' '
There was no contractual ·relationship between the · OM and. La Foy at tlhe
' '
relevant period. Put differently, La Foy co.uld perform her contractual functions
' ·· ..
35
optimally without any relationship with the OM or his involvement. By all
accounts, La Foy has failed to establish the existence of unfair discrimination
and her claim falls to be dismissed .
[70] In the results, the following order is made:
Order
... '
1. The claim for .unfair .discrimin:ati~n is dismissed .
2. There is ·no order 'as to '66sts.
Judg~ of thlt Labour Court of South Africa
36
Appearances :
For the Applicant: Mr HvR Woudstra SC
Instructed by: Maphalla Mokate Inc, Garsfontein .
For the Respondent: Mr M Gwala SC with him Ms M Lekoane.
Instructed by: State Attorney , Pretoria.