Workplace defamation: Can I claim damages?

You are a supervisor managing a number of staff. The business is upon hard times and this stress spills over into the workplace where staff tempers are short. One day a heated argument between employees arise. When you try and calm them down, the one employee verbally attacks and abuses you, calling you unintelligent and a liar and hurls derogatory slurs at you to embarrass you in front of the other staff. You feel belittled and reluctant to face your staff because you feel your character has been undermined by the employee’s conduct. Can you sue this employee for defamation of your character?

No one can argue that a work environment can often be a stressful place where tempers can flare and harsh words can be uttered. But does this justify conduct which affects the reputation of a person and if not, can damages be claimed for such defamation of one’s character and loss of reputation?

In answering this question the recent case of N Van der Westhuizen v M M Ntshabele can be looked at. In this matter the plaintiff was the human resource manager and the defendant an employee that was retrenched. Upon requesting the defendant to sign the required retrenchment documents and hand over company assets the defendant insulted the plaintiff, calling the plaintiff amongst other things unintelligent and a liar, as well as uttering racial remarks. This all took place in an open plan office space in front of the plaintiff’s colleagues and members of the public. The plaintiff was so embarrassed that she went to the privacy of the boardroom and burst into tears feeling humiliated. In considering the plaintiff’s claim for damages due to defamation the court took note of the following: the plaintiff was a human resources manager which required a relationship of trust with her fellow employees; the defendant’s conduct in calling her a liar and making racial remarks would have the outcome that such a trust relationship would cease to exist and would affect the plaintiff’s ability to perform her duties; there had also been no remorse on the side of the defendant who had not offered an apology for his conduct. Accordingly, the court ordered damages of R50,000.00 for defamation to be paid to the plaintiff. 

When suing for defamation the plaintiff must establish a wrongful and intentional publication of a defamatory statement concerning the particular person. A statement is defamatory if it is likely to injure the good esteem of a person and includes not only statements that expose a person to hatred, contempt or ridicule, but also statements that are likely to humiliate or belittle the person; and if it tends to make him or her look foolish, ridiculous or absurd or renders the person less worthy of respect by his or her co-workers and subordinates. To establish this, our courts apply a two-stage inquiry: the first is to establish the natural or ordinary meaning of the statement, and the second is whether that meaning is defamatory. 

In the first stage the criterion is what meaning the reasonable person of ordinary intelligence would attribute to the statement. At the second stage of the inquiry, our courts accept that a statement is defamatory of a person if it is likely to injure the good esteem in which he or she is held by the reasonable or average person to whom it had been published. 

The amount of damages to be awarded for defamation falls within the court’s discretion and the courts will usually consider awards made in other cases as guidance. The seriousness and falseness of the defamatory statements also play a determining factor in the amount of damages that can be awarded, together with the presence or absence of apologetic behaviour. 

In respect of the amount of damages that may be awarded, it is important to note that to sue for defamation is not a road to riches but a method to restore a person’s reputation. As such the seriousness of the statements, whether they were intentional and wrongful, whether the statements affected one’s ability to perform his work duties, whether they would negatively affect a bystander’s view of yourself, are all factors our courts will consider in evaluating the presence of defamation and the quantum of any damages that may be awarded. To help evaluate the merits of your situation it is important that you consult with an attorney and assess the possibility of a successful claim for defamation and damages.

June 11, 2015

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