SEXUAL HARASSMENT IN THE WORKPLACE: Ruling sheds new light

BY SUPPLIED - AUGUST 13, 2014

“Do you want a lover tonight?” became the subject of labour court deliberation… sexual harassment or sexual attention?

Some light has been cast over the murky subject of sexual harassment in the workplace following an important decision by the labour court to set aside a CCMA award in the case of Simmers v Campbell Scientific Africa (Pty) Ltd and Others [2014].

The case involved a male employee who accompanied a contractor and a female consultant to Botswana to survey a site and they all stayed over at a lodge and had dinner together one evening .While the contractor paid the bill, the amorous employee asked the consultant “Do you want a lover tonight?”. After being rebuffed he responded, “if you change your mind during the night, come to my room”. She did not, and he didn’t take it any further. The employer company became aware of the employees behaviour and he was dismissed after a disciplinary enquiry for sexual harassment, unprofessional conduct, and bringing the name and image of the company into disrepute, which he was alleged to have done by bad mouthing the contractor. The employee referred his dispute to the CCMA which found the dismissal to be fair.

The Labour court held differently and found that the words used, although crude and inappropriate, were not uttered in demand for sex but “more in hope than expectation” and did not cross the line from a single incident of an unreciprocated sexual advance to sexual harassment.

According to Jacqui Woodroffe of Shepstone &Wylie Attorneys labour law department, what is important is that the court made it very clear that for a single incident of unwelcome sexual conduct to constitute sexual harassment it must be serious and constitute an impairment of the complainant’s dignity.

The court further emphasized that misunderstandings are frequent in human interaction and the court doesn’t require an employer to uphold a standard of asexuality or androgyny in the workplace. As there was no workplace power differential, the parties were not co-employees, and the incident took place after work the court decided on the facts that this was an instance of unwanted sexual attention, and not harassment.

“An inappropriate comment is not automatically sexual harassment” comments Woodroffe. “It could only have become sexual harassment if the “harasser” had persisted in it or if it was a serious single transgression.”

Woodroffe said that employers need to tread carefully when faced with complaints of sexual harassment. “Its advisable to seek legal opinion to ensure that the conduct does fall under the definition of harassment as the implications for the accused can have very repercussions for that person’s future career.”