Campbell Scientific Africa (Pty) Ltd v S (CA 14/2014) [2015] ZALAC 51 [2016] 1 BLLR 1; (2016) ILJ 116 (LAC) (23 October 2015) per Savage AJA [Waglay JP and Coppin JA concurring]
The Labour Appeal Court (LAC) allowed the employer’s appeal and reinstated the award upholding the dismissal, and set aside the review judgment of Steenkamp J in the Labour Court. It was held that the Labour Court had misdirected itself in finding that the conduct of the employee amounted to ‘attention’ as opposed to ‘harassment’.
The LAC held that sexual harassment concerns the exercise of power and reveals the power relations in society generally and within the workplace. A sexually hostile working environment is often ‘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’.
Harassment can create an offensive and 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 ‘the most heinous misconduct that plagues a workplace’.
LAC summary:
Dismissal of employee for sexual harassment and unprofessional conduct found substantively fair at arbitration. Labour Court on review held that while conduct inappropriate it did not constitute sexual harassment. Dismissal set aside and employee reinstated with 12 month final written warning.
Held on appeal:
Conduct constituted sexual harassment and sanction of dismissal fair. Commissioner committed no reviewable irregularity and decision fell within the bounds of reasonableness required.
A recent award that went against the employer will probably be reviewed in the light of the LAC judgment.
In L v Barlow World Equipment [2015] 10 BALR 1087 (CCMA) an employee was reinstated after being dismissed for alleged sexual harassment. A manager with over 31 years service snapped a photo of a junior female colleague’s ‘behind’ on his cellphone in the presence of male colleagues. He intended no harm and had merely taken a picture of colleagues at work. It was stated that sexual harassment includes conduct that is repeated ‘despite being objected to, is personally offensive to the complainant and exhibits contempt for the complainant’s rights’. The conduct must also be unwarranted and of a sexual nature. ‘According to the oral evidence, the picture was blurred. It could not be inferred from the evidence that the applicant had been motivated by sexual desire when taking it’.