The 2005 Amended Code of sexual harassment talks of “…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: 4.1 whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation; 4.2 whether the sexual conduct was unwelcome; 4.3 the nature and extent of the sexual conduct; and 4.4, the impact of the sexual conduct on the employee.”

But what if an allegation of sexual harassment is false?  In such circumstances, is an employer entitled to take disciplinary action against the apparent wrongful accuser?

In the Labour Court judgment in the case of NUM obo Salaminah v the CCMA & 2 others (Case number JR1416/19), the employee had been found guilty and dismissed for “falsely and/or maliciously accused (her manager) of sexual harassment” during a disciplinary hearing which she did not participate in.  At the CCMA arbitration hearing, her dismissal was held to have been procedurally and substantively fair.  She took this finding on review to the Labour Court.

The back ground to this case was that the employee had been charged with three acts of alleged misconduct.  It was however the third allegation that stood out.  It was namely “failing to comply with the (employer’s) conditions of service, procedures and directives in that on 24 February 2014 (you) had falsely and/or maliciously accused (her manager) of sexual harassment”.

Her version was that “On 24 February 2014 (she) went to see (her manager) about her request for a car allowance which had not been finalised. She alleges that at that meeting he had told her that if she slept with him he would grant the car allowance. (her manager) denies such discussion. The following day she lodged a grievance in that regard demanding a written apology. The first grievance hearing found the complaint unproved”.

The employer’s first witness testified that “some time before the incident of 24 February 2014 the Applicant had been speaking to him and had told him that if (her manager) did not give her a car allowance she would blackmail him by raising a sexual harassment grievance. At the time, he thought she was only joking and had thought nothing of it until she lodged her grievance against (her manager). (Her manager) gave evidence about the events of 24 February 2014 and his demand that the matter be further investigated thereafter”.

It was submitted that the employer “took allegations of sexual harassment very seriously and once it had been found that the allegations were without proof it was harmful to an ongoing employment relationship. Essentially, the Applicant was found to have falsely laid a complaint of sexual harassment. Such conduct is detrimental to any ongoing employment relationship”.

For various reasons highlighted in the judgment, the Labour Court upheld the dismissal of the employee on grounds that she had falsely and maliciously accused the manager of sexual harassment.

Whilst there were various allegations of procedural unfairness, none of them were held to have been so serious as to have prejudiced the employee.

Whilst employers are duty bound to robustly investigate and address allegations of sexual harassment, and indeed any form of harassment, it is equally arguable that false and malicious allegations of sexual harassment equally warrant thorough investigation.

It is precisely for this reason that employers should sensitise all employees on the nature and implications of sexual harassment, to ensure that cases of this nature are kept to a minimum.