“To avoid criticism, do nothing, say nothing, be nothing.” (Elbert Hubbard)
An unpleasant boss. A strained working relationship. A manager whose style leaves much to be desired. Sound familiar? For many employees, the line between a miserable workplace and an unlawful one is frustratingly blurry. A 2023 Labour Court judgment helps draw that line more clearly. And the verdict may surprise some employees who’ve been banking on a harassment claim.
A senior official takes her employer to court
A Deputy Director-General at the Department of Justice and Constitutional Development referred a claim of unfair discrimination to the Labour Court. She alleged that she had been harassed on arbitrary grounds (as opposed to listed grounds like “race” or “gender”) in contravention of the Employment Equity Act (EEA).
Her complaints were wide-ranging: inadequate administrative support and resources, the removal of some of her work functions and reportees, what she viewed as selective disciplinary sanctions, a precautionary transfer she experienced as a demotion, being denied international travel and refused leave requests, plus a failure by the Department to consider her grievances.
The Court dismissed her claim in full.
What does “harassment” actually mean in law?
The Court was at pains to distinguish between exercising ordinary managerial authority and conduct that crosses into unlawful harassment. The two are easily confused, and employees sometimes interpret unwelcome management decisions as harassment simply because the consequences are unpleasant.
For conduct to constitute harassment under the EEA, it must meet an objective test. It must:
- Impair the employee’s dignity. Feeling sidelined or unhappy is not enough. The conduct must cause demonstrable harm to dignity.
- Create a hostile or intimidating work environment. Tension and friction are regrettably common in workplaces. The bar is higher than mere discomfort.
- Be linked to a prohibited or arbitrary ground. This is the element that catches many claimants off guard. An “arbitrary ground” is an unlisted personal characteristic, but it must be inherent to the person, form the basis for the ill-treatment, and result in substantial harm comparable to listed grounds like race or gender. Generalised management decisions, however unwelcome, do not qualify.
Crucially, the test is objective, not subjective. What matters is not solely how the employee experienced the conduct, but how a reasonable person would assess it in context.
Where the DDG’s case fell short
The Court found that, objectively assessed, her complaints amounted to the unpleasant consequences of management decisions rather than harassment in the legal sense. Significantly, she was unable to explain why the treatment she experienced amounted to unfair discrimination. A bald allegation is not sufficient. Employees must clearly establish the link between the conduct and a dignity-impairing ground.
What employers and employees should take from this
Employers may take some comfort here. Issuing instructions, reallocating duties, managing performance, declining travel requests, and initiating investigations are ordinary management functions. Provided those decisions are rational, grounded in legitimate operational reasons, consistently applied, and properly documented, they will not automatically expose employers to harassment claims.
That said, the Court was clear that managerial discretion has its limits. Decisions must be fair, transparent, and free from personalisation or arbitrary whim. When they are not, they may give rise to legal challenge.
Employees should be aware that the EEA is not a catch-all for general workplace dissatisfaction. If your complaint relates to a transfer, disciplinary steps, or benefits, the proper route is likely the Labour Relations Act’s unfair labour practice framework, not an EEA harassment claim.
The distinction between a difficult manager and a workplace bully matters enormously, both legally and practically. If you are uncertain which side of the line your situation falls on, come and talk to us.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.
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