The Labour Court’s judgment in La Foy v Department of Justice and Constitutional Development ([2023] ZALCJHB 253; (2023) 44 ILJ 2731 (LC)) is a valuable reminder that not every uncomfortable workplace experience, strained relationship, or unfavourable managerial decision constitutes harassment or unfair discrimination under the Employment Equity Act (EEA).
Here, the Court dismissed Ms La Foy’s claim in full, reaffirming that the EEA’s protection against harassment requires objectively harmful, dignity-impairing conduct linked to a listed or arbitrary ground, not the ordinary (and sometimes uncomfortable) dynamics of organisational management.
The claim and its context
Ms La Foy, then a Deputy Director-General: Constitutional Development, alleged a wide range of complaints against senior officials, including inadequate staff support, delayed or refused leave, non-approval of international travel, a precautionary transfer she viewed as a demotion, multiple show-cause notices, and deteriorating relations with the Deputy Minister.
She contended that these cumulative experiences amounted to harassment on an arbitrary ground under section 6 of the EEA. The Court disagreed, finding that she could not establish any of the essential elements of harassment or unfair discrimination.
What is an “arbitrary ground”?
An arbitrary ground under the EEA is an unlisted personal characteristic that nonetheless impairs dignity in a manner comparable to listed grounds such as race or gender. The characteristic must be inherent to the person, form the basis for the alleged ill-treatment, and result in substantial harm to dignity.
Ordinary workplace disagreements, operational decisions, resource constraints or interpersonal friction do not satisfy this standard. This is why the Court found that Ms La Foy’s complaints, while subjectively genuinely distressing, did not amount to discrimination on an arbitrary ground.
Key findings from the Court
Harassment requires objectively harmful conduct
The Court stressed that harassment is not established simply because an employee feels aggrieved or stressed. To qualify, the conduct must impair dignity, create a hostile or intimidating work environment, and be linked to a prohibited or arbitrary ground.
Many of the events raised by Ms La Foy reflected disappointment or strained workplace dynamics, but not harassment in the legal sense.
Managerial decisions are not harassment
Drawing on established Labour Court and Labour Appeal Court authority, the Court confirmed that issuing instructions, reallocating duties or resources, scrutinising performance, declining travel, and initiating investigations are ordinary management functions, even when experienced as unwelcome or unfair. These do not become harassment merely because the employee disagrees with them.
No evidence of discrimination
Critically, Ms La Foy conceded she did not know why she was treated the way she perceived herself to have been treated. This was fatal: claims of unfair discrimination require proof that the conduct was irrational, discriminatory and unfair, and linked to a dignity-impairing ground. None of these elements were established.
Many allegations were referred out of time
The EEA requires a referral to the CCMA within six months of the offending act or omission. Several of the alleged acts dated back to 2016, but the dispute was referred to the CCMA only in May 2017. The Court found these historical incidents could not be revived under a “continuing wrong” theory.
The “continuing wrong” theory holds that where discrimination is genuinely ongoing, the time limit for a referral to the CCMA does not start until the offending conduct stops.
The Court held it did not apply here, as each incident was a discrete, once-off, managerial decision rather than a continuous pattern of discrimination.
Employee cannot bypass LRA unfair labour practice processes
Where a complaint relates to benefits, appointments, probation, transfers or disciplinary steps, the proper remedy lies in the unfair labour practice framework of the Labour Relations Act (LRA), not the EEA. The Court was critical of attempts to re-cast routine labour relations issues as “harassment” to sidestep the LRA’s ordinary processes and time limits.
What employers should take from this judgment
Management must retain the ability to manage
The Court strongly reaffirmed that employers may restructure duties, allocate or withhold resources, manage performance, issue instructions, approve or deny travel, and initiate investigations without fear that such actions automatically expose them to harassment claims.
Decisions must still be lawful, rational and fair
While the Court protected managerial discretion, it made clear that managerial decisions must be grounded in legitimate operational reasons, follow proper process, and avoid personalisation or arbitrariness. Consistency, documentation and transparency remain critical.
Harassment claims require real, demonstrable harm
Employers should ensure that policies (aligned with the 2022 Harassment Code) distinguish legitimate managerial action, from conduct that objectively impairs dignity. Training for managers on communication, performance management and conflict handling remains essential.
Accurate timelines and records matter
The case illustrates the importance of monitoring referral dates and timelines, and maintaining and preserving document trails. Employers should keep clear records of decisions and reasons, track grievance and referral dates, and challenge late EEA claims at the outset.
Manage conflict before it becomes litigation
A breakdown in trust, while unpleasant, does not amount to harassment. However, unresolved conflict can escalate into formal disputes. Early mediation, structured interventions and facilitated discussions can prevent issues from hardening into litigation.
Conclusion
The judgment offers a clear and helpful delineation between true harassment and ordinary workplace friction. The EEA is not a catch-all for general dissatisfaction or perceived unfairness.
For employers, the message is straightforward: act transparently, document your decisions, apply policies consistently and ensure your processes are fair. When you do, ordinary managerial actions—even if unpopular—will not, without more, constitute harassment or unfair discrimination.