28 June 2021 by , and

Let the message be sent: “This is the protection which our Constitution affords” – the Constitutional Court’s ruling on compensation in sexual harassment cases

On 17 June 2021, the Constitutional Court (CC) handed down judgment in McGregor v Public Health and Social Development Sectoral Bargaining Council and Others (CCT 270/20) [2021] ZACC 14 (17 June 2021). The appeal relates to a compensation order handed down in relation to the misconduct of Dr McGregor, a senior employee, on four charges of sexual harassment. The victim of such behaviour was a recently admitted medical practitioner.

Pursuant to an internal disciplinary inquiry, Dr McGregor was found guilty of sexual harassment against the then medical student who was thirty years his junior in that he – “dared her to remove her clothes and swim naked”; he suggested she have an affair with him; inappropriately pressed himself against her while demonstrating how to carry out a medical procedure; and made sexual advances and inappropriately touched her leg while they were driving together.

Having been dismissed, Dr McGregor referred an unfair dismissal dispute to the Public Health and Social Development Sectoral Bargaining Council (the Bargaining Council). The arbitrator found Dr McGregor guilty of three of the four charges of sexual misconduct. He found the dismissal to have been substantively unfair, because Dr McGregor had not been treated the same as another employee facing similar charges. The arbitrator found the dismissal procedurally unfair, as Dr McGregor had been denied an opportunity to defend himself n respect of relevant evidence that had been excluded during his disciplinary hearing. The arbitrator, exercising his discretion, opted not to order reinstatement since the misconduct had been proven and reinstatement would be intolerable. Instead, taking into consideration the nature of the misconduct and the extent of the Department’s departure from substantive and procedural fairness, the arbitrator awarded Dr McGregor compensation in the amount of R924,679.92, which was equivalent to six months’ remuneration.

Dr McGregor chose to institute review proceedings in the Labour Court (LC) on the basis that his conduct neither constituted sexual harassment nor did it warrant dismissal. Both the LC and the Labour Appeal Court (LAC) concluded that a reasonable decision-maker could not have reached a conclusion that an employee who was found guilty on three out of four charges of sexual misconduct was dismissed for an unfair reason. However, both courts found that the dismissal was procedurally unfair and did not alter the arbitration award with regard to the amount of compensation awarded.

On further appeal to the apex court, the CC dismissed Dr McGregor’s appeal. It found that Dr McGregor’s contention that the victim was not a credible witness and that the allegations had been “trumped-up and false”, and that none of the previous forums had adequately traversed or assessed the veracity of the allegations against him, were all baseless. The issues had been well ventilated in the LC and LAC and he had no prospects of success in the CC. However, the CC upheld a cross-appeal by the Department of Health, which took aim at the compensation awarded to him.

The gist of the Department’s case was that the Commissioner, in deciding on the amount of compensation, was labouring under his erroneous belief that the dismissal was both substantively and procedurally unfair. Therefore, when the LC and LAC found that the dismissal was only procedurally unfair, but substantively fair, the amount of compensation should have been decreased accordingly. The CC agreed that since the Arbitrator calculated the compensation based on a finding that the dismissal was substantively fair and procedurally unfair, then “given that the dismissal is substantively fair, it stands to reason that the award of compensation should not have remained the same”.

The CC highlighted that, the infringement of an employee’s right not to be unfairly dismissed “neither necessarily nor automatically confers a right to a remedy. Specifically, an award of compensation is never guaranteed”. Importantly, the CC emphasised that the appropriateness of an order for compensation had to be viewed through the lens of the seriousness of the misconduct.

The CC concluded that, notwithstanding the gross nature of the misconduct, Dr McGregor himself had a right to a fair labour practice. Therefore, the CC decreased the amount of compensation from six to two months’ compensation for the procedural irregularity. The CC reasoned that the deviation in the procedure was minor. In fact, once the evidence complained of had been admitted during the arbitration, three out of the four charges for which Dr McGregor was dismissed were upheld

The CC highlighted that sexual harassment is the antithesis of substantive equality in the workplace as it completely strips away a person’s dignity to its core. It is clear from the judgment that the CC was alive to the ubiquity of power imbalance between genders in the workplace and society as a whole. Moreover, the CC emphasised that it is incomprehensible for a man to be paid close to R1,000,000.00 in compensation from the public purse for a procedural glitch in an instance where he was supposed to be dismissed for his actions.

The CC emphasised that sexual harassment is deplorable and grossly unacceptable no matter at whom it is directed, however, “the disparity in age and seniority is clearly an aggravating factor”. In casu, Dr McGregor was thirty years the victim’s senior and she was Dr McGregor’s intern and had just qualified as a medical practitioner. The power imbalance, in this case, was glaring.

It is evident that the CC took offence at the compounding effect of sexual harassment on the victim when it is suffered at the hands of a senior. It is unacceptable to compel an employee to balance his/her sexual dignity and integrity with his/her duty to show respect for seniors in the workplace.

This judgment makes the valiant statement that sexual misconduct in the workplace must be met with the harshest of penalties as they pose a barrier to the achievement of substantive equality in the workplace. Employers need to comprehend the indisputable power imbalance caused by persons in authority in the workplace, gender and gaps in age. Employers must invoke the power afforded to them by the Constitution and put into place comprehensive policies and tools to combat sexual harassment and promote gender equality in the workplace.

“Let the message be sent: This is the protection which our Constitution affords.”

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