Harmony Gold to pay R100k in damages for k-word incident

Harmony Gold has lost an appeal against a ruling by the Commission for Conciliation, Mediation and Arbitration in the Labour Court. Illustration: Lisa Nelson

• Harmony Gold must pay R100,000 in damages to an employee who was called the k-word by another.
• Because Harmony Gold did not properly investigate the matter or consult the complainant. It must be held liable, the Labour Court ruled.
• The court also rejected Harmony Gold’s reliance on a polygraph test to decide that the racist incident did not really happen.

The Labour Court has found that Harmony Gold must be held responsible for an employee’s use of the k-word because the company failed to take the necessary steps to address his racist conduct.

The court also discredited Harmony Gold’s use of polygraph tests to prove whether an employee had committed hate speech.

Read the judgment

In 2020, Sephitiphiti Ntshotsho, an underground locomotive driver at Harmony Gold’s Kusasalethu Mine in Merafong, laid a complaint with Harmony Gold against fellow employee Cornelius van Zyl for calling him the k-word. He also laid criminal charges against Van Zyl.

In its disciplinary process against Van Zyl, Harmony Gold conducted polygraph tests to determine whether Ntshotsho was telling the truth. According to Harmony Gold, the polygraph test was voluntary. Ntshotsho says he refused to take the test initially but felt compelled to take it after he was warned that if he didn’t, he would be considered someone who is dishonest.

Both Ntshotsho and his main witness, Xhamlo failed the test. Van Zyl’s test was inconclusive. [Scientific research indicates that polygraph tests are unreliable. - Editor]

Van Zyl was found guilty of hate speech in the criminal case, and sentenced to six months imprisonment or a R5,000 fine.

But Ntshotsho learned that Van Zyl had not been disciplined by Harmony Gold. He had transferred to a different company and his key witness resigned.

Ntshotsho then approached the Commission for Conciliation, Mediation and Arbitration (CCMA), arguing that he had been the victim of unfair discrimination due to Van Zyl’s hate speech and that because Harmony Gold had failed to remedy the situation, it should be held vicariously liable and pay him damages.

Vicarious liability is when an employer is held legally responsible for the acts of their employee. According to the Employment Equity Act, employers are responsible when their employees discriminate against others if the employer fails to consult all the relevant parties and take the necessary steps to eliminate the discrimination.

In arbitration, the CCMA ruled in Ntshotsho’s favour, ordering Harmony Gold to pay him R100,000 in compensation. But Harmony Gold then appealed to the Labour Court, arguing that the company had considered Ntshotsho’s allegations to be false because he had failed the polygraph test.

Harmony Gold argued that it was not able to institute disciplinary action against Van Zyl based on his criminal conviction because he had appealed the sentence.

But last month, the Labour Court rejected this argument. Polygraph tests cannot be relied upon as direct evidence, ruled Acting Judge Connie Phakedi. At best, they can be used to corroborate other forms of evidence. Therefore, the CCMA was correct in rejecting the polygraph test as evidence that Ntshotsho was dishonest.

Harmony Gold had failed to investigate the incident and had only consulted Van Zyl and his trade union, Solidariteit. Neither Ntshotsho nor his witness were consulted. This violated the Employment Equity Act.

Judge Phakedi said that Harmony Gold “has a duty to ensure that all employees are treated with dignity. The attitude towards the victims of racial discrimination as it was demonstrated towards Ntshotsho in this matter is quite disheartening to say the least.”

Harmony Gold was also wrong not to accept Van Zyl’s criminal conviction and the company should be held vicariously liable, Phakedi ruled.

The appeal was dismissed with costs and the order by the CCMA was upheld.

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