30 Jul 2014

Employment Update, Firms faced with sexual harassment claims must seek advice...featured in the Mercury's Network

Practice Area(s): Employment |

The Labour court recently set aside a CCMA award in the case of  Simmers v Campbell Scientific Africa (Pty) Ld and Others [2014] .  A male employee accompanied a contractor and a female consultant to Botswana to survey a site and they all stayed over at a lodge and had dinner together one evening .While the contractor paid the bill, the amorous employee asked the consultant “Do you want a lover tonight?”. After being rebuffed he responded, “if you change your mind during the night, come to my room”. She did not, and he didn’t take it any further. The employer company became aware of the employees behaviour and he was dismissed after a disciplinary enquiry for sexual harassment, unprofessional conduct, and bringing the name and image of the company into disrepute, which he was alleged to have done by bad mouthing the contractor. The employee referred his dispute to the CCMA which found the dismissal to be fair. The Labour court held differently and found that the words used , although crude and inappropriate,  were not uttered in demand for sex but “more in hope than expectation” and did not cross the line from a single incident of an unreciprocated sexual advance to sexual harassment. The court emphasized that misunderstandings are frequent in human interaction and the court doesn’t require an employer to uphold a standard of asexuality or androgyny in the workplace. For a single incident of unwelcome sexual conduct to constitute sexual harassment it must be serious and constitute an impairment of the complainant’s dignity, taking into account her circumstances and the respective positions of the parties in the workplace. As there was no workplace power differential, the parties were not co-employees, and the incident took place after work the court decided on the facts that this was an instance of unwanted sexual attention, and not harassment. An inappropriate comment is not automatically sexual harassment. It could only have become sexual harassment if he had persisted in it or if it was a serious single transgression. If employers are faced with complaints of sexual harassment they are advised to seek legal opinion regarding whether the conduct would fall under the definition of harassment.


By Jacqui Woodroffe, Associate

Contact: 031 575 7520 or jwoodroffe@wylie.co.za