Ms Singh, a former employee of the Provincial Department of Education in KwaZulu-Natal, claimed damages from her previous employer due to her loss of income following early retirement as a result of victimisation that led to her depression. The Supreme Court of Appeal held that she failed to lodge a grievance and, therefore, the employer cannot be held liable for an omission. Wrongfulness on the part of the Department was not established, and the Department’s appeal was upheld with costs.

MEC for Education, KwaZulu-Natal v Singh (1188/2021) [2023] ZASCA 92 (9 June 2023)

Case summary

Ms Singh, an employee of the Provincial Department of Education in KwaZulu-Natal, took early retirement in July 2011, seven years before reaching the mandatory retirement age of 65. She claimed that her decision was the result of her suffering from clinical depression due to prolonged victimisation by the school principal, Mr Padayachee, and alleged that her employer failed to address the issue adequately.

Ms Singh sought compensation for the income she would have earned during the remaining seven years of her career. After a delayed and interrupted trial, the KwaZulu-Natal Division of the High Court ruled in favour of Ms Singh, awarding her just under R1.3-million, along with interest and costs, representing the present value of seven years’ income. The Provincial Department of Education appealed against the judgment.

The Department disputed the allegations, denying that Ms Singh’s depression and early retirement were a consequence of victimisation. Causation and the link between the alleged actions of Mr Padayachee and Ms Singh’s retirement were also contested.

The Court held that Ms Singh had a legitimate grievance relating to victimisation, which is considered an act of misconduct. She had the right to lodge a formal complaint through the grievance procedure outlined in her employment conditions. If she had pursued this course of action and a resolution could not be reached through settlement, the Department would have been obligated to initiate disciplinary proceedings. Based on the evidence that was presented by Ms Singh, it was reasonable to assume that these proceedings would have concluded in her favour, necessitating the Department to take specific measures to address and rectify the ongoing victimisation.

Ms Singh claimed that she was unaware of the available grievance procedure, but the Court rejected this assertion, pointing out that she had previously used the grievance procedure to address bias in a promotion application and had obtained relief.

In the appeal, Ms Singh’s counsel argued that she had various legal avenues available to her, including constructive dismissal, following grievance procedures, seeking relief from the High Court, or pursuing a damages claim, with the latter being the chosen course.

The Court opined that the facts presented did not support holding the Department liable in delict for the financial consequences of Ms Singh’s early retirement. Wrongfulness was not established and, therefore, her claim should have been dismissed. Consequently, negligence and causation did not need to be considered.

Ms Singh chose not to utilise the grievance procedure for her victimisation complaint. The Court held that the Department could not be held liable if the employee had failed to follow the grievance procedure and, therefore, the appeal was upheld with costs.

This article does not constitute legal advice. For an informed opinion and/or assistance with a labour-related matter, you are encouraged to arrange a formal consultation with the author.

Written by the Labour Guide