When an employee is accused of sexual harassment and disciplinary action looms, it is not uncommon for the accused to threaten a defamation claim against the employer and complainant. The threat is often more tactical than legal; however, it places employers and complainants in an uncomfortable position: continue with legitimate disciplinary processes, or risk being sued? A recent High Court judgment makes it clear that the law supports employers who act in good faith.
In a recent judgment1, the High Court dismissed a former employee’s defamation claim against his former employer and co-worker, arising from an internal sexual harassment grievance lodged against him. The claim was based, in part, on a grievance letter submitted by the co-worker, who alleged that has been subjected to sexual harassment by the employee. Following the grievance, the allegation of sexual harassment formed one of three charges of misconduct brought against the employee, which ultimately resulted in his dismissal.
The former employee contended that the grievance letter by the co-worker was defamatory, and that his employer was both vicariously liable for its publication and independently liable for formulating charges against him without first conducting an adequate prior investigation. He further alleged that these events caused harm to his dignity and damaged his reputation. He sought damages in this regard, including compensation for future loss of earnings. This was after he had unsuccessfully pursued an alleged unfair dismissal claim at the CCMA.
In deciding the matter, the High Court applied the doctrine of qualified privilege. The High Court held that the doctrine provides that a communication made in the discharge of a legal, moral, or social duty, or in the furtherance of a legitimate interest, is protected against an action for defamation, even if the communication turns out to be untrue or hurtful, provided it is made without malice. Where a qualified privileged occasion exists, the High Court held that, the law presumes that the person making the statement lacked the intention to injure. In reaching its decision, the High Court relied on the Khuza and another v Khanyiwe2judgment, which addressed the doctrine of qualified privilege in the context of workplace disciplinary investigations.
The High Court emphasised this point, stating that:
"The grievance letter of 5 November 2022 was written and submitted by the first defendant to her line manager, in the course of her employment, in order to report conduct that she – on the evidence, with good reason – believed constituted sexual harassment. This is precisely the kind of communication that the doctrine of qualified privilege is designed to protect
The rationale is clear and compelling. The Labour Relations Act, the Employment Equity Act, and the Code of Good Practice on the Handling of Sexual Harassment Cases all impose obligations on both employees and employers in respect of workplace sexual harassment. An employee who files a grievance about sexual harassment is discharging a legitimate right – indeed a protected act – under this legislative framework. To expose such an employee to a defamation suit by the alleged harasser would fundamentally undermine the protective purpose of the legislation.
Similarly, the second defendant [employer], upon receiving the grievance, was under a legal and statutory obligation to investigate the complaint and to take appropriate action. The formulation of charges, the conduct of a disciplinary hearing, and the imposition of a sanction were all steps taken in discharge of those statutory obligations. These were not voluntary acts of publication; they were compelled by law and required by the Code of Good Practice."
The co-worker’s grievance was therefore found, by the High Court, to have been lodged in good faith and in line with her rights under the Labour Relations Act3, Employment Equity Act4 and Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace.5 Similarly, the employer’s investigation and disciplinary action were conducted in compliance with its legal and statutory obligations.
As such, the High Court, dismissed the claim with costs - finding that it lacked merit both in fact and in law. Importantly, the High Court emphasised that allowing defamation claims in such circumstances would undermine workplace protections, particularly those aimed at encouraging the reporting of misconduct such as sexual harassment.
The former employee also contended that the co-worker had referred to him as “boy” in the grievance letter and that such use of the word “boy” indicated that the communication intended malice and therefore the reliance on qualified privilege was defeated (waived) by the parties relying on it. In response to this, the High Court said: - “The doctrine of qualified privilege attaches to the occasion as a whole, not to every individual word or expression contained in the privileged document.”
This judgment offers important reassurance for employers. While employees accused of misconduct may threaten defamation claims, particularly in sensitive cases such as sexual harassment, employers can take comfort in the fact that the law recognises and protects the integrity of workplace disciplinary investigations where complaints are raised and handled in good faith, and in accordance with legal obligations
