12 March 2018 by , and Employment Alert

Innocent attraction vs s exual harassment

In the judgment discussed in this alert, the Labour Court held that there is everything wrong when employees express their affection in the workplace to each other, to the point where the conduct in question is frowned upon, as it crosses that fine line between innocent attraction and s exual harassment.

The case of Rustenburg Platinum Mines Limited v UASA obo Pietersen and Others (JR641/2016) [2018] ZALCJHB 72 is a case that reflects and confirms the conflation that often exists and persists between employment law and issues of society at large, such as victimisation, discrimination, fairness, gender issues and constitutionalism.

This case related to a review application brought against the decision of a commissioner who found that the employee had made s exual advances towards the victim, however the victim’s “docile” conduct encouraged him to do so and as such it did not amount to unwanted s exual harassment.

The victim had suffered unwanted s exual advances from the employee for an enduring period. The employee was in a senior position to the victim and relied on his position of authority whenever the victim would not comply with his advances.

He offered to help pay for the victim’s expenses at one point, so that they could sleep together. He also suggested to the victim that they attend training together so that they are given an opportunity to sleep together. He even shared a test memorandum with her for a job/promotion that the victim had intended applying for. When the victim WhatsApped the employee to tell him that she will be reporting his behaviour, he assisted in suspending her and arranging a disciplinary hearing.

In the CCMA, the employee was the only person who testified for his case, while the victim called four other witnesses to testify on her behalf. The witnesses testified that the victim had on previous occasions confided in them about her perils and expressed to them why she felt uncomfortable and “not free” to report the incidents.

In the case of Campbell Scientific Africa (Pty) Ltd v Simmers and Others (CA 14/2014) [2015] ZALCCT 62 (23 October 2015), Savage JA held:

“At its core, s exual 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 s exually 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.”

The codes of good practice for s exual harassment essentially lay out what commissioners must look out for when determining s exual harassment cases. In this instance, the commissioner was of the view that if any of the elements outlined in the 1998 code of good practice: s exual harassment is “lacking” no s exual harassment would have occurred. The commissioner placed specific emphasis on whether the employee must have been aware or should have reasonably been aware that his conduct was unwanted by and deemed offensive to the complainant. In considering this point, the Labour Court held that it could not have been the intention of the drafters of the code of good practice that one factor should be considered more important than another. The absence of one factor does not mean that s exual harassment did or did not occur. Commissioners are obliged to consider the impact of the s exual conduct of the employee.

We live in a time where victimisation of women cannot go without scrutiny and due consideration. Accordingly, in the Labour Court’s view “For the Commissioner therefore to not to have found anything wrong in the inappropriate advances made by [the employee]…and to merely treat them as actions of someone love-struck, or “proposing love” is worrying in the extreme.” The harassed employee had no obligation to say no unambiguously when she was in a junior position to the employee. It was also clear that there was no reciprocation and that is enough.

Employers and employees alike should remain aware of the fact that women continue to be harassed and victimised and that courts will not be willing to tolerate that behaviour.

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