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Sexual harassment – How many times does the sexually harassed employee have to say no?

30 June 2014

Earlier this year the Labour Court in SA Metal Group (Pty) Ltd handed down an important judgment dealing with sexual harassment in the workplace. The dismissed employee was employed as a divisional director. He was charged with sexual harassment of a subordinate female employee in the company’s human resource department. He was dismissed at the internal enquiry. The dismissal was found to be substantively unfair by the CCMA.

On review it was argued that it was unreasonable of the arbitrator to find that there was no sexual connotation in the messages sent by the employee to the complainant  The commissioner found that the evidence presented did not contain any explicit sexual connotation and that the complainant’s views to the contrary were “purely subjective”.   In other words, the commissioner found that the complainant was being oversensitive.

Here is a glimpse of some of the emails from the employee to the complainant:

  • “Can’t wait for summer to see you strut your stuff.” 
  • “Listen, we had better stop ‘shoe flirting’ before we get into trouble with my other girlfriends.” 
  • “We are going to get into trouble for flirting hey.”
  • “It’s okay you can come to my house tonight if you get Scott out.” 
  • “Are you offering to complain with me?”

At arbitration, it was also led in evidence that the employee informed the complainant that he had a dream about her and that the dream had been “hectic”.

The commissioner held that the complainant was to have made it explicit to the employee that the banter and hugging constituted sexual harassment (in her view).  A higher bar was imposed upon her as she was an HR practitioner.

The court on review:

  • Paid attention to the power imbalances between the complainant and the employee.
  • Emphasised the complainant’s evidence that she failed to report the harassment earlier as she was trying to preserve her position (as a newcomer to the applicant’s employ). 
  • Took into account that the employee had an obligation placed on him in his senior managerial position to refrain from any conduct that would contribute to a hostile work environment. This obligation became stronger in circumstances where the complainant signalled her discomfort and advised him that contact was unwelcome. 
  • Dismissed the notion that if a person works in HR he/she would be expected to take more needed action in reporting sexual harassment.

Furthermore, the submission on behalf of the employee that until such time as he was made aware that the conduct was unwelcome there could be no sexual harassment was wrong, given the definition of “sexual harassment” in the 2005 Code of Good Practice. In terms of the Code a single incident of harassment can constitute sexual harassment and it is not necessary that the recipient make it clear that the behaviour is considered offensive. The failure by the commissioner to take proper account of the 2005 Code was unreasonable and the award was set aside and replaced with an order that the dismissal of the employees was substantively fair.

This is a welcome decision in seeking to stem the tide against the scourge of sexual harassment suffered in the workplace.

The team

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