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Siphile Hlwatika | 26 February 2023

The landmark labour court judgment is the first to rule that racial, ethnic and social origin harassment constitute unfair discrimination under the Employment Equity Act’s code of good practice. This distinguishes it from its predecessor, which recognised only sexual harassment.

Arecent judgment by the labour court has demonstrated the consequences of an employer’s failure to meet its obligations in cases involving unfair discrimination allegations.

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

The Labour Court recently considered the code in Solidarity obo Oosthuizen v South African Police Service, where it had to consider whether the South African Police Service (SAPS) was vicariously liable for the racial abuse Lieutenant-Colonel Annemarie Oosthuizen suffered at the hands of her direct subordinates, warrant officers Adam Tikoe and Seiso Mphana.

Tikoe and Mphana had accused Oosthuizen of referring to them with a racial slur after she had taken corrective action against them relating to their absenteeism.

Oosthuizen reported the incident to the station commander, who ordered an investigation and recommended the institution of disciplinary action against the warrant officers. The station commander also requested that the officers be transferred pending the investigations, but this did not happen.

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

A few days later, Oosthuizen was approached by an intern who informed her that she had overheard the warrant officers conspiring to falsely accuse her of racial discrimination.

Oosthuizen lodged a grievance, requesting that disciplinary proceedings be instituted against the warrant officers. The SAPS did not institute any disciplinary action against them, but instead transferred Oosthuizen pending the finalisation of the disciplinary action against her.

The investigation report issued by a Captain Morris concluded that the case against the warrant officers was serious and that they be charged accordingly. The recommendation was not implemented by the SAPS provincial commissioner.

Oosthuizen later received a notice that a decision had been taken to institute disciplinary action against her for using a racial slur. She was, however, acquitted on all charges during the disciplinary hearing.

A year after the incident, the warrant officers were charged. Mphana was found not guilty on the basis that there were no statements that corroborated and proved that he had committed the misconduct. Tikoe, on the other hand, pleaded guilty and was given a sanction of a written warning and one day’s leave without pay.

Oosthuizen was never called as a witness during the two warrant officers’ disciplinary proceedings.

It was further brought to the court’s attention that the warrant officers had been found guilty in the North West regional court of, among other offences, assault and crimen injuria. They were charged internally and dismissed.

Labour Court’s decision

The court had to decide:

  • whether the conduct of the warrant officers in harassing and falsely accusing Oosthuizen of racism constituted unfair discrimination;

  • whether the SAPS had failed to act in accordance with section 60 of the Employment Equity Act and was vicariously liable; and

  • What relief should be granted in the event that the SAPS was found to have contravened the act.

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

The court found that the SAPS’s insistence that it had taken all the necessary steps to address the racial harassment was not backed up by evidence. What had transpired was that the SAPS had protected the perpetrators of racial harassment.

Importantly, the court found that the SAPS was oblivious to its statutory duties in terms of section 60 of the Employment Equity Act. In this regard, the court found that the SAPS:

  • failed to consult all relevant parties;

  • did not take the necessary steps to eliminate the racial harassment, but acted in a partial manner by protecting the perpetrators at the expense of the victim; and

  • did not do all that was reasonably practicable to ensure that the warrant officers would not racially harass Oosthuizen.

As a result, the court found that Oosthuizen was entitled to compensation for the negative impact on her dignity, especially since the SAPS manipulated the warrant officers’ disciplinary hearing and outcome.

The SAPS was ordered to pay Oosthuizen R300,000 and tender a written apology to her for the indignity she had suffered. The SAPS was further ordered to pay costs.

Broadened scope

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

Employers should ensure that they understand the broadened scope and application of the code to minimise the risk of adverse findings of vicarious liability in terms of section 60 of the Employment Equity Act. It is also important for employers to ensure that they have a policy dealing with harassment in the workplace.

Courts will likely consider this when determining whether an employer took the necessary steps to eliminate harassment in the workplace.

‘Disclaimer - The views expressed here are not necessarily those of the BEE CHAMBER’.

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