Most Recent Publications

Breaking News



Oh no! More employment regulation

By Aadil Patel, Director and Boipelo Diale, Employment Law, Cliffe Dekker Hofmeyr

 

Various entities, academics and commentators have stated that the employment arena is over regulated. Whether this is true is a debate for another day.

 

Recently, in the case of AMCU and Others v Buffalo Coal Dundee (Pty) Ltd and Another (JA42/2015) [2016], the Labour Appeal Court held that where a mining rights holder is not the employer it too must consult with the trade union insofar as the contractor intends to terminate employees’ employment for operational requirements.

 

In the recent case of Mnyandu v Padayachi (AR162/2014) [2016], an employee (Padayachi) applied for a protection order in terms of the Protection from Harassment Act, No 17 of 2011 (Act) after receiving an email from a colleague (Mnyandu) which was circulated at their place of employment in which certain allegations were leveled against Padayachi and three colleagues. Padayachi alleged that his colleague had circulated an email which was ‘defamatory, slanderous, libellous, dishonest, deceitful and malicious’. He contended that by circulating the email, Mnyandu ‘impaired his dignity, defamed him, adversely affected his wellbeing and undermined his opportunity for promotion and financial benefit’ at his place of employment by fabricating unfounded claims against him.

 

Padayachi could have utilised the common law to institute a claim for defamation or requested the employer to take disciplinary action against Mnyandu for her conduct. Instead, Padayachi used the Act to found his claim. Padayachi contended that that this email constituted harassment.

 

The Magistrates Court determined whether the conduct, ie the email sent by Mnyandu constituted harassment.

 

In s1 of the Act “harassment” is defined as:

 

‘directly or indirectly engaging in conduct that the respondent knows or ought to know

 

(a)   causes harm or inspires the reasonable belief that harm may be caused to the complainant or a related person by unreasonably:

 

(ii)  engaging in verbal, electronic or any other communication aimed at the complainant or a related person, by any means, whether or not conversation ensues; or

 

(iii) sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant or a related person or leaving them where they will be found by, given to, or brought to the attention of, the complainant or a related person;

 

‘harm’ means any mental, psychological, physical or economic harm.’

 

The Magistrates Court found that the email sent by Mnyandu was sufficient to constitute harassment in the workplace. The Magistrates Court issued a final protection order against Mnyandu.

 

The Magistrates Court should have stated that the Act does not apply to the workplace and dismissed the claim. Rather, the Court stated that the Act applies in the workplace. As a result, employers and employees have to now contend with yet another piece of legislation applicable in the workplace.

 

Mnyandu appealed to the High Court. On appeal, the High Court overturned the decision of the Magistrates Court and ruled in favour of Mnyandu. Although, the High Court found that the Act was applicable at the workplace, it found that Mnyandu did not harass Padayachi.

 

The High Court confirmed that the Act can apply to the workplace and may be useful in the work environment. Accordingly, the Act and the issuing of a protection order in terms of the Act extends to the workplace.

 

For more information please contact Aadil Patel at This email address is being protected from spambots. You need JavaScript enabled to view it.

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

Courses and Workshops

Our Clients

 

Managing Day to Day Issues/ Problem Employees Full day workshop

29 September 2017

Southern Sun: Elangeni & Maharani, Elangeni Towers: Durban

13 October 2017

Southern Sun: OR Tambo International Airport

Workshop Policies and Procedures

05 October 2017

Southern Sun: OR Tambo International Airport

Basic Labour Relations

06 October 2017

Emperors Palace: Convention Centre

Skills Development Committee Training

12 October 2017

Southern Sun/Tsogo Sun Hotel: Or Tambo International Airport

19 October 2017

Protea Hotel By Marriott Tyger Valley: Cape Town

Workshop Chairing Disciplinary Hearings

12 & 13 October 2017

Emperors Palace: Convention Centre

Skills Development Legislation and Review

18 October 2017

Protea Hotel By Marriott Tyger Valley: Cape Town

26 October 2017

Emperors Palace: Convention Centre

The OHS Act and the Responsibilities of Management

27 October 2017

Southern Sun/Tsogo Sun Hotel : Or Tambo International Airport

17 November 2017

Protea Hotel By Marriott Tyger Valley: Cape Town

Health and Safety Representative Course

03 November 2017

Emperors Palace: Convention Centre

15 November 2017

Protea Hotel By Marriott Tyger Valley: Cape Town

Occupational injuries and diseases in the workplace

08 November 2017

Southern Sun/Tsogo Sun Hotel : Or Tambo International Airport

16 November 2017

Protea Hotel By Marriott Tyger Valley: Cape Town

2017: Case Law Updates

17 November 2017

Emperors Palace Convention Centre