The tickly beard and the sexual harassment dismissal

Most unfortunately, we will in all likelihood be lamenting the scourge of workplace sexual harassment for some time to come.  The Code of Good Practice in handling of Sexual Harassment Cases in the Workplace could not be clearer – “Sexual harassment in the working environment is prohibited on the grounds of sex and/or gender and/or sexual orientation” (section 3).

Section 4 of the Code provides us with the test for sexual harassment – “Sexual harassment is unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace, taking into account all of the following factors, (1) whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation, (2) whether the sexual conduct was unwelcome, (3) the nature and extent of the sexual conduct, and (4) the impact of the sexual conduct on the employee”.

It’s not complicated, but here’s the thing.  Firstly, most employees underestimate how broad the definition of sexual harassment is, and secondly, too few employers educate and sensitise employees on sexual harassment in the workplace, and the consequences thereof, for both the victim and the perpetrator.

On 11 May 2021, the Labour Court passed judgement on one such sexual harassment case – Thandani Umlaw v CCMA & 2 others (Case no. JR1466/18).

The facts were quite straight forward.  As recorded in the judgment “The applicant (the alleged perpetrator) was alone in an elevator at work when a female colleague (Ms. S) entered and complimented him on his newly grown beard.  Ms. S added that the beard looked good on him.  After the applicant had thanked her, Ms. S asked him why he had kept his beard long.  The applicant’s response was that he uses it to ‘tickle’ and then proceeded to demonstrate what he meant by holding Ms. S and rubbing his bearded face against her face in a tickling manner, giving her a bear-hug, and a kiss on the neck and face.  On his own version, and for good measure, a further kiss on Ms. S’ forehead followed”.

The judgment continued that “for demonstrating the tickling prowess of his grown beard and other related conduct whilst in the elevator with Ms. S, the applicant was charged and dismissed for sexual harassment”.

Let’s pause a moment.  Most reasonable minded people will have no difficulty in appreciating that the behaviour described is wholly unacceptable.  Be that as it may, the alleged perpetrator, who was dismissed for sexual harassment, after which he referred an unfair dismissal case to the CCMA.

At the CCMA, the dismissal of the alleged perpetrator was held to have been procedurally and substantively, after which he took the CCMA arbitration award on review at the Labour Court, arguing that his dismissal as unfair, and seeking an order that the arbitration award be set aside.

During the course of the Labour Court matter, further details regarding the case came to light, such as the fact that Ms. S reported the incident to her employer, informing them, understandably, that she felt violated and was scared to go back to the office.  According to Ms. S “throughout the experience she remained numb and silent in shock and disbelief”.

The alleged perpetrator acknowledged asking Ms. S about her weekend plans when the elevator stopped at the level where staff vehicles were parked.

In the Labour Court judgment, the Judge noted that “The compliment of Ms. S was clearly innocuous and did not deserve any response other than a simple ‘thank you’ .. not the response she got”.

Tellingly, the perpetrator “ .. failed at the time and even in these review proceedings, to appreciate the enormity of the consequences of his reprehensible conduct”.

Predictably, the review was dismissed and the dismissal was upheld.

Employers interfere with hearing sanctions at their peril

As a rule, employers may not interfere with the outcome of a disciplinary hearing where the chairperson is empowered to make a final decision.  This, was confirmed in South African Revenue Services v Commission for Conciliation Mediation & Arbitration & others [2016] 3 BLLR 297 (LAC), in order to protect employees from arbitrary interference with discipline in a fair system of labour relations.

This issue was addressed in a recent Labour Court case – Technology Innovation Agency v Segopotso Mashapo & 2 others (Case no. JR449/19).

The employee had been issued a written warning for insubordination.  The employee was “displeased” with the written warning, and lodged an internal appeal.  This, puzzlingly, led to a formal disciplinary hearing being convened. As noted in the judgment “It is not apparent from the record as how the appeal process concluded and what happened to the impugned written warning”.

The disciplinary hearing was chaired by an independent chairperson who found the employee guilty and recommended a sanction of a final written warning, valid for a period of 12 months. However, management than corresponded with the employee, informing him that management had ‘expressed its reservation’ on the recommended sanction of a final written warning “and invited him to make written submissions as to why the sanction of final written warning should not be substituted with a sanction of dismissal”.

Notwithstanding the employee’s objection to this, management substituted the final written warning with the sanction of dismissal.

The dismissal of the employee was, unsurprisingly, found to have been substantively unfair, and the employee was awarded 6 months compensation.

The Labour Court judgment concurred with the CCMA Commissioner – “It is inexplicable that a sanction of a written warning would be catapulted into a dismissal when the circumstances that led to the charges remained the same”.

There’s a lesson here for employers.  As we routinely advise clients, always build a managerial appeal into a company appeal procedure. This may not have quite assisted the employer in this case, but it does as a rule afford employers a legitimate opportunity to revisit disciplinary hearing outcomes they consider ill advised.