Former Romans Pizza employee loses R1.3 million defamation claim over ‘boy’ remark

A former Romans Pizza employee has lost a R1.3 million defamation claim after the Limpopo High Court in Polokwane found that a workplace grievance containing allegations of sexual harassment was protected by qualified privilege.

M Donald had taken legal action against his former employer and a female colleague after she submitted a grievance in November 2022 in which she referred to him as a “boy”.

Donald argued that the word was racially demeaning and damaged his dignity and reputation.

He claimed R200,000 for damage to his dignity, another R200,000 for damage to his good name and reputation and R900,000 for future loss of income.

He also asked the court to order the defendants to issue written apologies.

Acting Judge Diamond dismissed the claim in its entirety and ordered Donald to pay the legal costs of both defendants on an attorney-and-client scale.

The grievance that sparked the case

Donald had worked for Romans Pizza from 2004 until he was dismissed in December 2022.

On 5 November that year, a female colleague submitted a written grievance accusing him of sustained sexual harassment and inappropriate behaviour.

Among the allegations were claims that Donald had touched her without consent, pressed his private parts against her body and acted aggressively towards her.

The grievance was submitted through workplace channels, initially reaching her line manager before being passed to the business owner.

It subsequently became part of the disciplinary process against Donald.

Donald disputed the allegations and argued that the reference to him as a “boy” was defamatory, particularly given that he was an adult Black African man.

Why the court protected the grievance

A central issue in the case was not simply whether the word “boy” could be offensive, but the circumstances in which it was used.

The court found that the grievance was made within an internal workplace process and was directed to people with a legitimate reason to receive it.

That meant the communication took place on what the court regarded as a qualified privileged occasion.

In practical terms, qualified privilege can protect certain statements made in appropriate circumstances, such as when someone has a legitimate duty or interest in communicating information and the recipient has a corresponding interest in receiving it.

The judge found that the employee had a legitimate reason to report what she alleged was sexual harassment.

Romans Pizza, meanwhile, had a responsibility to investigate a workplace complaint of that nature.

The court therefore found that the grievance was protected.

Judge rejects argument over the word ‘boy’

Donald’s case focused heavily on the use of the word “boy”.

He argued that it had a racial meaning in the circumstances and was therefore defamatory.

The court was not persuaded.

The judge found that Donald had not properly pleaded the specific innuendo necessary to establish the alleged defamatory meaning. The court also noted that he had not provided expert evidence addressing the cultural meaning of the word in the particular circumstances.

Another detail considered by the court was that Donald himself had referred to the complainant as a “girl”.

More importantly, the judge found that the central purpose of the grievance was to report alleged sexual harassment. The reference to Donald as a “boy” was considered peripheral to those allegations.

The court found that even if the word had been motivated by spite, the privilege attached to the occasion because the dominant purpose of the communication was to report alleged misconduct.

Disciplinary hearing ended in dismissal

The grievance did not remain an isolated workplace complaint.

Following the allegations, Romans Pizza charged Donald with gross insolence, gross negligence relating to food safety and sexual harassment.

An independent disciplinary hearing found him guilty on all three charges and he was dismissed in December 2022.

Donald later challenged his dismissal at the Commission for Conciliation, Mediation and Arbitration.

The CCMA dismissed his unfair dismissal dispute and found that his dismissal had been both substantively and procedurally fair.

The High Court also heard evidence from several witnesses about Donald’s conduct towards female colleagues.

According to the judgment, some witnesses described unwanted touching and inappropriate language, while other evidence related to alleged aggressive behaviour.

The judge found the witnesses credible.

The court also considered Donald’s disciplinary history at Romans Pizza, which stretched over almost two decades and included two previous sexual harassment complaints.

R900,000 loss of income claim also fails

Donald argued that the allegations and his dismissal had damaged his future employment prospects and sought R900,000 for future loss of income.

The court rejected this part of the claim too.

One problem was the lack of a sufficient causal connection between the workplace grievance and the alleged future financial loss.

During cross-examination, Donald acknowledged that he had found work at Motate Lodge after leaving Romans Pizza.

That evidence weakened his argument that he had been unable to secure employment because of the allegations.

The judge also found there was no reasonable basis for assuming Donald would have remained at Romans Pizza until the age of 60, particularly considering his disciplinary history.

The court noted that the grievance had been handled internally and had not been publicly circulated to prospective employers.

Court refuses to order an apology

Donald also wanted the court to compel the defendants to provide written apologies.

That request was rejected.

The judge found that such an order would be legally incompetent because a court cannot force someone to express a particular sentiment.

The court ultimately dismissed the entire claim.

Punitive costs awarded against former employee

The judgment went further than simply rejecting the damages claim.

The judge criticised Donald’s litigation and evidence on several material issues, describing the action as opportunistic.

The court found that a punitive costs order was warranted and ordered Donald to pay the legal costs of both defendants on an attorney-and-client scale.

The case highlights an important distinction in workplace disputes: a statement made during an internal disciplinary or grievance process is not automatically treated in the same way as a statement published publicly.

In this case, the court’s focus was not simply on whether the word “boy” could have been offensive in another context. It considered who made the statement, why it was made, who received it and the wider purpose of the grievance.

Ultimately, the court found that the workplace process provided the protection relied upon by the defendants and that Donald had not established a basis for the R1.3 million claim.

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Source: iol.co.za