‘On the facts of this case, the assault took on racial and gendered overtones’ – Judge Wallis.
This article was originally produced by Tania Broughton from Moneyweb.
A former senior manager in the office of the Mpumalanga Premier has been given judicial authority to sue her former boss for damages for physical and psychological injuries she suffered when attacked by protestors while she was at work.
The Premier and the Director-General attempted to raise a “special plea” in the matter brought against them by Catherine May Churchill, former chief director for policy and research. They argued that they should not be held liable, and she should put in a claim with the Compensation Fund.
The High Court agreed, but the Supreme Court of Appeal (SCA) overturned that ruling and declared the premier and the DG liable.
Being attacked at work are not ordinarily “things that go with the job”, said the court.
Churchill is claiming about R7.5 million in damages, the bulk being compensation for loss of income calculated from June 2017, when she resigned because of “intolerable work conditions”, to the date of her retirement, on the basis that she will never be able to work again.
The final amount will still have to be determined by a high court.
The SCA judgment, penned by Judge Malcom Wallis (with four judges concurring) details the events of that day in April 2017. There was a protest organised by the National Education, Health and Allied Workers’ Union (NEHAWU). Some of the participants were employees and had access cards. A group of about 20 to 30 entered the building.
Churchill’s assistant said she was afraid. Churchill had to take a document to a colleague and told her she could leave once she got back to the office. But when she got back, the assistant had left and locked the door.
She swore in frustration. One of the protestors took umbrage, believing she was swearing at them and challenged her. She retreated to a colleague’s office, who tried to hold the door closed, stopping the protestors from entering. She hid behind the door and telephoned her husband saying she was not safe, and he must come and fetch her.
The protestors found her there. “Three men lifted her up above their heads and carried her out of the office up two flights of stairs. She was pleading to be put down. Someone called her a piece of white s**t,” Judge Wallis said.
In the foyer, she was put down in the middle of the crowd and her shoes were removed. People pushed, shoved and punched her while jeering and shouting “voetsek” and “get out”. One of her shoes was thrown at her and she was chased out of the building.
Her husband, who had heard everything because she had kept her cellphone on, was waiting outside.
The ordeal lasted three-quarters of an hour.
Judge Wallis said an agreed medical report reflected that she suffered physical injuries and, more importantly, psychological injuries that had left her with Post Traumatic Stress Disorder.
She had tried to return to work “but the situation was intolerable”.
Regarding the special plea, Judge Wallis said the Compensation for Occupational Injuries and Diseases Act only applied if the “accident” arose out of, and in the course of an employee’s employment.
“Formulating a single test to determine whether injury arose out of the injured party’s employment is neither feasible nor desirable. In this matter, her employment had brought her within the zone of the hazard giving rise to the injuries. But was the risk incidental to her employment; the answer was an emphatic ‘no’,” he said.
“The respondents argued that the risk was foreseeable, because it was a regrettable reality that protest action can lead to aggressive incidents.
“There are of course jobs which give rise to risks, security personnel come to mind, but assault in the workplace, by fellow workers, is not something that ordinarily arises.
“On the facts of this case, the assault took on racial and gendered overtones. It is difficult to see on what basis, as a general proposition, attacks on a person’s dignity and bodily integrity are incidental to their employment.
“In simple language, they are not things that ‘go with the job’,” Judge Wallis said.
The court ruled that Churchill’s injuries did not “arise out of her employment” and her appeal must succeed.
About Kyle Condon: Kyle Condon – Grad of I.S (SA) is a founding member and Managing Director of D&K Management Consultants. This second-generation Private Investigation and Fraud prevention company assists businesses and individuals to handle various criminal and civil investigations. After more than 27 years in business, Kyle is regarded as one of the country’s leading minds on business crime and investigations. Kyle is a regular contributor to local newspapers and television news. He is also the Regional Director (Africa) on the Council of International Investigators (CII).