OH NO! MORE EMPLOYMENT REGULATION
Various entities, academics and commentators have stated that the employment arena is over regulated.
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.
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) , 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) , 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.
2 | EMPLOYMENT ALERT 19 September 2016
OH NO! MORE EMPLOYMENT REGULATION
The High Court confirmed that the Act can apply to the workplace and may be useful in the work environment.
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.
Aadil Patel and Boipelo Diale
Cliffe Dekker Hofmeyr
Ranked Cliffe Dekker Hofmeyr
TIER 2 FOR LABOUR AND
South African law firm and 12th internationally for Africa & Middle East by deal value
South African law firm and 2nd internationally for Africa & Middle East by deal count
South African law firm and 15th internationally for Europe
buyouts by deal value
3 | EMPLOYMENT ALERT 19 September 2016
Employment STRIKE GUIDELINE
Our Employment practice's new EMPLOYMENT STRIKE GUIDELINE
answers our clients' FAQs.
Topics discussed include strikes, lock-outs and picketing. CLICK HERE TO FIND OUT MORE
CHAMBERS GLOBAL 2014 - 2016 ranks our Employment practice in Band 2: Employment. Aadil Patel ranked by CHAMBERS GLOBAL 2015 - 2016 in Band 2: Employment. Hugo Pienaar ranked by CHAMBERS GLOBAL 2014 - 2016 in Band 2: Employment. Fiona Leppan ranked by CHAMBERS GLOBAL 2016 in Band 3: Employment.
Michael Yeates named winner in the 2015 and 2016 ILO Client Choice International Awards in the category `Employment and Benefits, South Africa'.
4 | EMPLOYMENT ALERT 19 September 2016
For more information about our Employment practice and services, please contact:
Aadil Patel National Practice Head Director T +27 (0)11 562 1107 E email@example.com
Gillian Lumb Regional Practice Head Director T +27 (0)21 481 6315 E firstname.lastname@example.org
Fiona Leppan Director T +27 (0)11 562 1152 E email@example.com
Samiksha Singh Director T +27 (0)21 481 6314 E firstname.lastname@example.org
Gavin Stansfield Director T +27 (0)21 481 6313 E email@example.com
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Ndumiso Zwane Senior Associate T +27 (0)11 562 1231 E email@example.com
Katlego Letlonkane Associate T +27 (0)21 481 6319 E firstname.lastname@example.org
Sipelelo Lityi Associate T +27 (0)11 562 1581 E email@example.com
Hugo Pienaar Director T +27 (0)11 562 1350 E firstname.lastname@example.org
Anli Bezuidenhout Senior Associate T +27 (0)21 481 6351 E email@example.com
Anelisa Mkeme Associate T +27 (0)11 562 1039 E firstname.lastname@example.org
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Kirsten Caddy Senior Associate T +27 (0)11 562 1412 E firstname.lastname@example.org
BBBEE STATUS: LEVEL THREE CONTRIBUTOR Cliffe Dekker Hofmeyr is very pleased to have achieved a Level 3 BBBEE verification under the new BBBEE Codes of Good Practice. Our BBBEE verification is one of several components of our transformation strategy and we continue to seek ways of improving it in a meaningful manner. This information is published for general information purposes and is not intended to constitute legal advice. Specialist legal advice should always be sought in relation to any particular situation. Cliffe Dekker Hofmeyr will accept no responsibility for any actions taken or not taken on the basis of this publication. JOHANNESBURG 1 Protea Place, Sandton, Johannesburg, 2196. Private Bag X40, Benmore, 2010, South Africa. Dx 154 Randburg and Dx 42 Johannesburg. T +27 (0)11 562 1000 F +27 (0)11 562 1111 E email@example.com CAPE TOWN 11 Buitengracht Street, Cape Town, 8001. PO Box 695, Cape Town, 8000, South Africa. Dx 5 Cape Town. T +27 (0)21 481 6300 F +27 (0)21 481 6388 E firstname.lastname@example.org 2016 1300/SEPT
EMPLOYMENT | cliffedekkerhofmeyr.com