Sexual Harassment

The misguided and long-held view that because the 2 parties involved in an alleged incident of sexual harassment were not co-employees; that they would probably never work together again; that there was seemingly no disparity of power between them, and that the conduct was a once-off incident meant that sexual harassment could not have taken place was dealt with and dispatched by the Labour Appeal Court in the matter of Campbell Scientific Africa (Pty) Ltd v Simmers & others (2016) 37 ILJ 116 (LAC).

 

The facts of the case were as follows :

A company that employed an employee ( Ms Markides – who was 23 years old ) had contracted with another company to work on a joint project in Botswana. Mr Simmers, a 48-year-old installation manager was employed by this other company.

Mr Simmers, his colleague Mr le Roux, and Ms Markides were staying at a lodge, where they were surveying a site. On their last night at the lodge, the three had dinner together. While Mr Le Roux settled the bill, Mr Simmers and Ms Markides walked to the parking area.

Ms Markides’ version of what then happened was that Mr Simmers told her that he felt lonely; that he made advances towards her and asked her to come to his room, ( which invitation he repeated a few times), and that he also asked her if she had a boyfriend, to which she responded that she did, and that it was a serious relationship. Mr Simmers then invited her to phone him in the middle of the night if she changed her mind.

Mr Simmers’ version of events was that he asked Ms Markides only once and half-jokingly ‘Do you need a lover tonight?’ and that when she refused, he told her that if she changed her mind she should come to his room and knock and that they could then go to town and take a few photographs. He also said that what had occurred was no more than a sexual invitation between consenting adults which had been meant lightly.

Mr Simmers’ was dismissed for unprofessional conduct and sexual harassment, which dismissal Mr Simmers then challenged.

 

The matter was first heard by the Commission for Conciliation, Mediation & Arbitration (CCMA), then the Labour Court, and finally by the Labour Appeal Court (LAC).

The LAC unequivocally set out the law, and the zero tolerance approach that will be adopted by our Courts.

It was held that our constitutional democracy is founded on the explicit values of human dignity and the achievement of equality in a non-racial, non-sexist society under the rule of law, and that the treatment of harassment as a form of unfair discrimination in s 6(3) of the Employment Equity Act 55 of 1998 recognizes that such conduct poses a barrier to the achievement of substantive equality in the workplace.

The Court went on to say that at its core, sexual harassment is concerned with the exercise of power and by its nature, such harassment creates an offensive and very often intimidating work environment that undermines the dignity, privacy and integrity of the victim and that it was for this reason characterised as the most heinous misconduct that plagues a workplace.

Turning to the facts of the case, the Court found that the misconduct occurred within the context of a work related social event; that the advances made constituted harassment, that they were serious in that Mr Simmers capitalised on Ms Markides’ isolation in Botswana to make the unwelcome advances that he did, and that they impaired the dignity of Ms Markides.

Furthermore, there existed a disparity of power directed by Mr Simmers at a young woman close to 25 years his junior, and that underlying such advances lay a power differential that favoured Mr Simmers due to both his age and gender. The fact that Mr Simmers did not hold an employment position senior to that of Ms Markides or that they were not co-employees did not mean that no disparity in power existed.

The Court concluded that the conduct constituted sexual harassment, as it was unwelcome and unwanted; it was offensive; it intruded upon Ms Markides’ dignity and integrity; and it caused her to feel both insulted and concerned for her personal safety.

The conduct was regarded as reprehensible as it was founded on the pervasive power differential that exists in our society between men and women and, in the circumstances of this case, 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 was thus not merely an unreciprocated sexual advance.

The Court also went on to hold that in treating the conduct as sexual harassment, Ms Markides, and other women such as 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, and that the dismissal of Mr Simmers would send out a clear message that employees who perpetrate sexual harassment do so at their own peril and should expect to face the harshest penalty of dismissal.

This case highlights not only the seriousness with which sexual harassment issues must be viewed, but that they are handled in the correct manner, and as such, expert legal advice should always be obtained when dealing with matters of this nature.