14 March 2022 by and Employment Law Alert

The harshest penalty: Sexual harassment in the public sector

In the recent decision of the Labour Appeal Court in Ekurhuleni Metropolitan Municipality v South African Local Government Bargaining Council and Others (JA17/2021) [2022] ZALAC 3 (27 January 2022), the court examined the exercise of power and the unequal gender power relations that exist in society generally, and in workplaces in particular.

The court reiterated that South Africa’s constitutional democracy is founded on the explicit values of human dignity and the achievement of equality in a non-racial, non-sexist society which operates under the rule of law. Central to this vision, the court held, is the hope that our Constitution will have us re-imagine power relations in our society so as to achieve substantive equality, especially for those who have suffered or continue to suffer unfair discrimination.

The facts

The facts of this particular case turn on the conduct of a public official, Mr Mabetoa, who was employed at the Ekurhuleni Metropolitan Municipality’s vehicle testing station, towards the complainant, a member of the public.

On 23 June 2015 the complainant went to the testing station to make a booking for her learner’s licence, where Mabetoa attended to her. While taking her payment for the licence, he told the complainant that he would phone her and that she looked like she would “taste nice in bed”, or words to that effect. The complainant was shocked. She left the testing station but did not report the incident.

On 31 August 2015 the complainant returned to the testing station to take her learner’s licence test. Mabetoa was one of the officials tasked with signing certificates and taking fingerprints that day. When Mabetoa took the complainant’s fingerprints, he rubbed her hand in a manner that made her very uncomfortable and told her that she looked like she was “nice in bed”. He also offered to visit her now that he had her address. This was the final straw for the complainant who reported Mabetoa’s conduct to his supervisor.

Dismissal dispute

Mabetoa was charged with sexual harassment, subjected to a disciplinary hearing and dismissed. Mabetoa referred an unfair dismissal dispute to the South African Local Government Bargaining Council. At the bargaining council, the arbitrator found that Mabetoa had probably committed the misconduct described by the complainant. He found, however, that the sanction of dismissal was too harsh considering Mabetoa’s 10 years of clean service with the municipality. The arbitrator reinstated Mabetoa with a final written warning.

Unsurprisingly, the municipality brought an application to review the arbitrator’s decision. On review in the Labour Court, the matter took a bizarre turn. The acting judge who heard the matter held that the arbitrator had committed a misdirection by finding that any misconduct had occurred at all. He reasoned that there was not sufficient evidence to establish Mabetoa’s guilt. He found that the complainant’s version did “not make sense”. He was sceptical of her version as she had not reported Mabetoa after the first incident. She also failed to choose another official other than Mabetoa to do her fingerprints. He found it improbable that the complainant would have approached Mabetoa on the second occasion if he had previously harassed her. Furthermore, there was nothing wrong with Mabetoa touching her hand as he would have had to do so as part of the fingerprinting process. The municipality’s review application was dismissed with costs.

Labour Appeal Court

This led to the appeal to the Labour Appeal Court. In its analysis of the evidence the court found, among other things, that the complainant’s version was not challenged by Mabetoa in cross examination and should have been accepted. Furthermore, Mabetoa had admitted that he had used words to the effect of “you will taste nice or look nice in bed”. The court found that based on the material before the arbitrator, his finding that Mabetoa had committed the alleged misconduct was not unreasonable. Accordingly, the Labour Court had erred in this regard.

The court found that it would be remiss not to comment on the Labour Court’s approach in this matter. It held that the Labour Court’s approach was in conflict with the constitutional imperatives that have guided the courts’ approach to the treatment of such matters. In undertaking its task in the manner that it did, the Labour Court contributed to the indignity endured by the complainant.

Sanction serves an important purpose

Turning to sanction, the arbitrator clearly recognised that Mabetoa’s misconduct was serious. However, he found that it was too harsh, taking into account Mabetoa’s long service and clean record. The court found that in considering an appropriate sanction the arbitrator was required to have regard to the full conspectus of the evidence before him. This included the nature and seriousness of the misconduct, the importance of the rule, the harm caused by the employee’s conduct, his knowledge of and training about the rule, the reason the employer imposed a sanction of dismissal, the basis of the challenge to the dismissal, and the employee’s disciplinary record and relevant mitigating factors.

The court referred to its own judgment in Campbell Scientific Africa (Pty) Ltd v Simmers [2015] ZALCCT 62; (2016) 37 ILJ 116 (LAC), where it stated that in the context of sexual harassment, sanction serves an important purpose in that it “sends out an unequivocal message that employees who perpetrate sexual harassment do so at their peril and should more often than not expect to face the harshest penalty”.

To make matters worse, Mabetoa was an official employed in the public sector who, in the course of the provision of public services to a member of the public, sexually harassed her. This constituted an abuse of a public position of authority. Furthermore, his harassment was committed more than once and directed at the same member of the public. This was a seriously aggravating factor.

The court found that the arbitrator’s decision on sanction was not one that a reasonable decision-maker would make. It reiterated that an arbitrator is not given the power to consider the issue of sanction afresh, but is required to determine whether the sanction imposed by the employer is fair. The award of the arbitrator was substituted with a finding that Mabetoa’s dismissal was substantively fair.

Despite our Constitution’s protection of fundamental values of human dignity and equality, South African society, broadly, has failed to properly re-imagine gender power relations and women, in particular, continue to suffer unfair discrimination. This is an important judgment. It clearly sets out our obligations in this regard and reiterates that sexual harassment will not be tolerated in the workplace. Perpetrators should expect to face the harshest penalty.

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