Labour and Employment Law

• Citation: 2021/2022 YSAL 748
• Published date: 14 April 2023
• Pages: 748-851
• Author: Grogan, J.
• Date: 14 April 2023

748

1. INTRODUCTION

As usual, hundreds of judgments and awards concer ning labour and

employment law were issued during the year under review. Of necessity, a

selection has been made of tho se which either dealt with new issues, settled

those issues which had be en unresolved, or confirmed principles that m ight

have been debatable. Cases on related issues are merely referenced for

research purposes.

2. LEGISLATION

2.1 BASIC CONDITIONS OF EMPLOYMENT ACT 75 OF 1997 (BCEA)

Sectoral Determi nation 1: Contract Cleaning Se ctor, South Africa published

under GN 622 in GG 200 64 of 14 May 1999 was amended (GN 1732 in

GG45882 of 7 February 2022).

Sectoral Determi nation 9: Wholesale and Retail Se ctor, South Africa

published under GN 162 in GG 39671 of 9 February 2016 was amended

(GN 1732 in GG45882 of 7 February 2022).

Determination: Ea rnings Thre shold (GN 1736 in GG45890 of 9 February

2022): the notice defines ‘earnings’ and determine s that all employees

earning in e xcess of R224 080,48 per annum are excluded from ss 9, 10, 11,

12, 14, 15, 16, 17(2) and 18(3) with effect from 1 March 2022.

2.2 COMPENSATION FOR OCCUPATIONAL INJURIES AND

DISEASES ACT 130 OF 1993 (COIDA)

The Accounts Verification System Gazette 2021: Banking requi rements for

occupational injuries a nd diseases-related claims was published (GenN 526

inGG45126 of 10 September 2021).

Labour and Labour and

Employment LawEmployment Law

John Grogan*

* BA(Hons) (Rhodes) B Iuris LLB (SA) LLM PhD (Rhodes); Advocate of the High Court of

South Africa; formerly Professor, Head and Dean of the Department of Law, Rhodes University.

2021/2022 YSAL 748

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LAbour ANd empLoYmeNt LAW 749

The Annual Incre ase in Medical Tariffs for Medical S ervices Providers:

Wound Care was published (GenN 153 in GG44356 of 30 March 2021).

2.3 EMPLOYMENT EQUITY ACT 55 OF 1998 (EEA)

The Code of Good Practice on the Prevention and El imination of Harassment

in the Workplace was published under GG 46056 GN R1890 on 18 March

2022.

Initially, the Department of Employment and Labour, which may issue

codes of good practice, focused on sexua l harassment. This was done by

means of a Code of Good Practice on the Ha ndling of Sexual Harassme nt

Cases in the Workplace (GenN 1357 in GG27865 of 4 August 2005). A new

code has now expanded the reach of the prohibit ion to harassment in all its

forms, including bullyi ng. The new code deals with sexual ha rassment as

well, but treats this as a sub- category of harassment generally.

Except to provide examples of conduct that may be classed as such,

neither the EEA nor the code defines ‘ha rassment’ or ‘bullying’ prec isely.

Harassment is described a s ‘what it is generally understood to be’: unwanted

conduct which impairs dign ity and creates a hostile or inti midating

environment calculated to i nduce submission by actual or threatened

adverse consequences and which is related to one of the proh ibited grounds of

discrimi nation set out in the EEA. It may include, from one extreme, violence

through physical, psychological and emotional abu se and itself constitutes

an abuse of power. There are only five specific refer ences to bullying in the

code. It is said to include ‘threats, shaming, hosti le teasing, insults, constant

negative judgment and criticism, or racist, sexist, or LGBTQIA+ phobic

language’. Bullying is said to include all forms of ha rassment involving ‘the

abuse of coercive power by an individual or group of individuals i n the

workplace’, al so called ‘mobbing’ or, when conducted on social media or

by email, ‘cyber-bullying’. Harassment, particularly in the form of bu llying,

may be ‘an escalating process in the cou rse of employment in which the

complainant ends up in an i nferior position and becomes the targe t of

systematic negative social acts’.

Otherwise, examples of bul lying morph into the general list of tho se

activities regarded as hara ssment. These include (but are not lim ited to)

slandering and malig ning employees or spreading malicious r umours

about them; humiliating, i nsulting or otherwise demeani ng them; starving

them of information or givi ng them false infor mation or impeding their

work; surveillance with harm ful intent; use of discipli nary sanction s

without ‘objective cause, explanation or problem solving’; demotion without

justification; and pressu ring an employee to resign (item 4.7). Such conduct

contributes to a ‘hostile work environment’, which is one where the dignit y

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of any employee is undermined, whether thi s is caused by colleagues or

managers, members of the public, customers or clients, even where the

employer should have anticipated it, or the harassment may occur indirectly

ie is not directed at any partic ular individual but has the effect of alienati ng

him or her.

Various grounds of harassment are elaborated on separately. Harassment

on two grounds is speci fically targeted. Sexual harassme nt is first on the list

and embraces not only harassment of the opposite sex, but als o ‘same-sex’

harassment on the grounds of gender or sex ual orientation. As provided in

the EEA, a victim of sexual h arassment must indicate by some means (even

by walking away) that the conduct is unwanted, and victim s must report

any incident as soon as possible (not necessari ly ‘immediately’, as the Act

provides), but sexual harassment may be found to have occurred even if

a complainant had not indicated that the conduct was u nwanted. Sexual

harassment may take many forms, fr om obvious examples such as touching,

kissing, sexua l assault and rape, to more insidious forms like followi ng or

watching, indecent exposu re, or the display by electronic means of sexually

explicit pictures or object s. A single incident may be enough. It may also

take the more subtle form of victi misation for failing to submit to advances

or offering favours to influence a n employee to surrender to sexual advances

or, the opposite, favouring employees for the same purpose. All forms of

harassment must somehow be linke d to the prohibited grounds listed i n

s 6(2) of the EEA.

‘Racial harassment’, to which is added ‘ethnic or social origin h arassment’,

is in some respects w ider than sexual haras sment. Racial harassment

includes ‘direct or indirect behaviour ’ involving ‘racist verbal and non-verbal

conduct, remarks, abusive conduct, racist name calling, offen sive behaviour,

gestures and racist ca rtoons, memes and innuendos’ – in short, any kind of

racial stereotyping. Its forms i nclude, apart from the obvious, such as racist

name calling a nd hate speech, ‘subtle or blatant exclusion from workplace

interaction and activities a nd other forms of margina lisation’. Unlike

sexual harassment, such conduct is presu med to amount to harassment,

even if the particula r person at whom it is aimed is not offended or is

unaware of it. Racial harassment must be ass essed ‘with reference to the

reaction of a normal and reaso nable person in keeping with the values of

the constitutional order’ a nd ‘taking into account South Africa’s history of

institutionalised discrimination’.

The reach of the code extends beyond the workplace but seems to be

limited to situations related to work. These i nclude public and private spaces

where work is performed, places where employees take their meal breaks,

work-related trips or social events, accommodation or transport provided

by employers, homes in which domestic workers or caregivers work, and

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