Author: Imraan Mahomed - Practice Area Lead, Employment/Labour Law
The Labour Appeal Court has the final say on how harassment will be frustrated.
In June 2014, I wrote an article called Sexual harassment – how many times does the sexually harassed employee have to say no? The article dealt with the 2014 Labour Court decision inSA Metal Group (Pty) Ltd, which I believed at the time was an important judgment dealing with sexual harassment in the workplace. In SA Metal the CCMA dismissed a claim of sexual harassment. This was overturned on review where the Labour Court found that the failure of the commissioner to take proper account of the 2005 Code of Good Practice was unreasonable.
Co-incidentally, around the same time the Labour Court in Cape Town was considering a separate review application of a CCMA award relating to sexual harassment. In this case, the employee Mr Adrian Simmers made advances towards a work colleague from another company while on a business project in Botswana. Surprisingly, his dismissal for sexual harassment and unprofessional conduct was found to have been substantively unfair by the Labour Court (on review) and his retrospective reinstatement ordered subject to a final written warning valid for 12 months. It is the October 2015 decision of the Labour Appeal Court in this case, being Campbell Scientific Africa (Pty) Ltd v Adrian Simmers and Others (as yet unreported, 23 October 2015), that I want to focus upon in this article. The LAC judgment is a natural follow on after the SA Metal decision and provides employees with some useful guidance on navigating the often advanced defence of the conduct amounting to “sexual attention” and not “sexual harassment”.
The facts are simplistically the following: Mr Simmers was employed by Campbell Scientific. He was on a business trip in Botswana in 2012 with Ms X who worked for Loci Environmental (Pty) Ltd. On the last night of their trip Mr Simmers, Ms X and Mr Simmers’ colleague Mr Le Roux had dinner. At the end of the evening, Mr Simmers told Ms X that he felt lonely. He made advances towards her and asked her to come to his room. She refused. He asked her if she had a boyfriend, which she confirmed. Mr Simmers then asked Ms X to phone him in the middle of the night if she changed her mind.
According to Mr Simmers, he joked with Ms X when he said to her, “Do you want a lover tonight?” And, after Ms X rebuffed the request, he said to her, “Come to my room if you change your mind.” This was a once-off incident according to Mr Simmers and he did not persist. When Mr Simmers’ employer learned of the incident, it began disciplinary proceedings. Mr Simmers was subsequently dismissed. Aggrieved, Mr Simmers approached the CCMA, which found that his dismissal was fair.
The Labour Court review decision
Mr Simmers admitted having said to Ms X “do you want a lover tonight?” and “come to my room”. The court was to determine whether this constituted sexual harassment and, if so, whether this was sufficiently serious to warrant his dismissal. The Labour Court in justifying its finding that the dismissal was unfair and ordering took the following factors into account:
Mr Simmers and Ms X were not co-workers and they would probably not work together again because Ms X had emigrated to Australia, and there was no disparity of power between them.
Mr Simmers’ conduct related to a once-off incident and it occurred after hours and outside the workplace.
Mr Simmers’ conduct “did not cross the line from a single incident of an unreciprocated sexual advance to sexual harassment”. Once Ms X made it plain to Mr Simmers that his conduct was not welcome, he backed off.
Mr Simmers’ comments, crude and inappropriate as they may have been, were not a demand for sex and they could only have become sexual harassment if he persisted in them or if they constituted a serious single transgression, which they did not.
The comments amounted to “sexual attention” and, in blunt terms, Mr Simmers was “trying his luck”.
A single incident of unwelcome sexual conduct can constitute sexual harassment, but such an incident must be serious. It should constitute an impairment of the complainant’s dignity, taking into account his or her circumstances and the respective positions of the parties in the workplace. This nearly always involves an infringement of bodily integrity, such as touching, groping or some other form of sexual assault, or quid pro quo harassment. Misunderstandings are frequent in human interaction and an inappropriate comment does not automatically constitute sexual harassment.
The Labour Appeal Court
The full bench of the LAC agreed with the CCMA that Mr Simmers’ dismissal for sexual harassment was fair.
The LAC noted that harassment is a form of unfair discrimination in terms of the Employment Equity Act, 1998 (the EEA). The court also had regard to the definition of “sexual harassment” in the applicable Codes of Good Practice, namely:
The Code of Good Practice on the Handling of Sexual Harassment Cases under the Labour Relations Act, 1995 (the LRA Code), in terms of which sexual harassment is defined as unwanted conduct of a sexual nature, which is distinguished from behaviour that is welcome and mutual. Furthermore, sexual attention becomes sexual harassment if (a) the behaviour is persisted in, although a single incident of harassment can constitute sexual harassment; and/or (b) the recipient has made it clear that the behaviour is considered offensive; and/or (c) the perpetrator should have known that the behaviour is regarded as unacceptable.
The Code of Good Practice on the Handling of Sexual Harassment in the Workplace under the EEA (EEA Code), in terms of which sexual harassment is defined as 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 (a) whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation; (b) whether the sexual conduct is unwelcome; (c) the nature and extent of the sexual conduct; and (d) the impact of the sexual conduct on the employee.
Acting Justice of Appeal Savage writing for the LAC made the following poignant point: At its core, sexual harassment 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 is often exerted by a male co-worker and not necessarily a supervisor. By its nature, such harassment creates an offensive and often intimidating work environment that undermines the dignity, privacy and integrity of the victim and creates a barrier to substantive equality in the workplace. The LAC goes on to characterise sexual harassment as the most heinous misconduct that plagues a workplace.
The LAC went on to hold that:
Both the LRA and EEA Codes record that a single act may constitute sexual harassment. The treatment of harassment as a form of unfair discrimination in section 6(3) of the EEA 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, issued under the LRA, and the subsequent 2005 Amended Code on the Handling of Sexual Harassment Cases in the Workplace (the Amended Code), issued under the EEA.
Both the LRA Code and the EEA Code provide that victims of sexual harassment may include not only employees, but also clients, suppliers, contractors and others having dealings with a business. In spite of it being termed the “Amended” Code, the EEA Code does not replace or supersede the LRA Code, which to date has not been withdrawn. The result is that in terms of section 203(3) of the LRA, both Codes are as “relevant codes of good practice” to guide commissioners in the interpretation and application of the LRA.
Mr Simmers’ unwelcome and inappropriate advances were directed at Ms X, a young woman close to 25 years his junior, whose employment had placed her alone in his company in a rural area. Underlying such advances lay a power differential that favoured Mr Simmers due to his age and gender. Ms X's dignity was impaired by the insecurity caused to her by the unwelcome advances and by her clearly expressed feelings of insult.
Sexual harassment by older men in positions of power has become a scourge in the workplace. The rule against sexual harassment targets, among other things, reprehensible expressions of misplaced authority by superiors towards their subordinates. Sexual harassment is founded on the pervasive power differential that exists in our society between men and women and between older men and younger women. The fact that the conduct was not physical, that it occurred during the course of one incident and was not persisted with thereafter, did not negate the fact that it constituted sexual harassment and this was not a case of Mr Simmers merely “trying his luck”. Mr Simmers opportunistically singled out Ms X to face his unwelcome sexual advances in circumstances in which she was entitled to expect and rely on the fact that within the context of her work this would not occur. In treating this conduct as sexual harassment, Ms X and others like her are assured of their entitlement to engage constructively and on an equal basis in the workplace without unwarranted interference upon their dignity and integrity.
In short, the LAC concluded that it would test Mr Simmers’ conduct against the definition of sexual harassment, as defined in both Codes as follows:
Was the conduct unwelcome and unwanted?
Was it offensive?
Did it intrude upon Ms X’s dignity and integrity?
Did the conduct caused Ms X to feel both insulted and concerned about her personal safety?
Sexual predators in the workplace should be warned that the LAC has clearly made the point that the sanction of dismissal sends out an unequivocal message that employees who perpetrate sexual harassment do so at their peril and should expect to face the harshest penalty.
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