Campbell Scientific Africa (Pty) Ltd v S (CA14/2014) [2015] ZALAC 51 [2016] 1 BLLR 1 ; (2016) ILJ 116 (LAC) (23 October 2015)
Sexually harassing conduct: Savage AJA
Excerpts without footnotes
“[18] Our constitutional democracy is founded on the explicit values of human dignity and the achievement of equality in a non-racial, non-sexist society under the rule of law. Central to the transformative mission of our Constitution is the hope that it will have us re-imagine power relations within society so as to achieve substantive equality, more so for those who were disadvantaged by past unfair discrimination.
[19] The treatment of harassment as a form of unfair discrimination in s6(3) of the Employment Equity Act 55 of 1998 recognises that such conduct poses a barrier to the achievement of substantive equality in the workplace. This is echoed in the 1998 Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace (the 1998 Code), issued by NEDLAC under s203(1) of the Labour Relations Act 66 of 1995 (LRA), and the subsequent 2005 Amended Code on the Handling of Sexual Harassment Cases in the Workplace (the Amended Code), issued by the Minister of Labour in terms of s54(1)(b) of the Employment Equity Act 55 of 1998.
[20] At its core, sexual harassment is concerned with the exercise of power and in the main reflects the power relations that exist both in society generally and specifically within a particular workplace. While economic power may underlie many instances of harassment, a sexually hostile working environment is often “…less about the abuse of real economic power,and more about the perceived societal power of men over women. This type of power abuse often is exerted by a (typically male) co-worker and not necessarily a supervisor.”
[21] By its nature such harassment creates an offensive and very often intimidating work environment that undermines the dignity, privacy and integrity of the victim and creates a barrier to substantive equality in the workplace. It is for this reason that this Court has characterised it as “the most heinous misconduct that plagues a workplace”.
Now reported: [2016] 1 BLLR 1 (LAC)
Headnote:
Dismissal – Misconduct – Sexual harassment – What constitutes – Male manager making sexual proposition to employee of another company during business trip – Conduct constituting sexual harassment and dismissal justified.
On 19 December 2018, the Minister of Labour issued a notice formally repealing and replacing the 1998 code with the amended code of 2005.