Sex related acts not always sexual harassment
In the case of Maepe vs Commission for Conciliation, Mediation and Arbitration & another (CLL Vol. 17 June 2008) a senior commissioner at the CCMA was brought to a disciplinary hearing on charges of sexual harassment and improper or disgraceful conduct. A CCMA receptionist had accused the senior commissioner of having professed his love for her, blown her kisses and told her that he clutched her photo to his chest.
The disciplinary hearing was chaired by another senior commissioner who dismissed the accused commissioner who then referred an unfair dismissal dispute to the CCMA. The arbitrator found that the employee’s conduct did not constitute sexual harassment because the receptionist had not indicated that the employee’s advances towards her were unwelcome and because the employee might not have realised that his actions were unwelcome. While the arbitrator found that the employee was guilty of making inappropriate sexual advances he replaced the dismissal with a final warning. This was despite having found the employee to have lied under oath at the hearing.
The CCMA, in its capacity as employer, applied to the Labour Court on review. The Court duly overturned the arbitrator’s decision. On appeal the Labour Appeal Court (LAC) decided that the dismissal had been unfair but agreed with the employer that reinstatement was inappropriate because, a commissioner who cannot respect the oath when he testifies, cannot be allowed to continue in a job where he administers the oath to others.
The LAC found the dismissal to be unfair because there was no evidence that the employment relationship had either been materially damaged or had become intolerable. On the contrary, the employer had allowed the employee to continue working for five months after his conduct had been reported.
The LAC’s decision is confusing. It agreed that the employee had been guilty of inappropriate behaviour towards the receptionist. It also agreed that, because of the fact that the employee had lied under oath, he should not be allowed to continue in his job. This being so, why was the dismissal unfair? Did the Court expect the employer to find a different post for the employee that did not involve administering the oath? Had the employer attempted to find such an alternative vacancy without success, would the dismissal then have been fair?
The outcome of this case is a lesson to all employers not to delay the implementation of an employee for too long because this can result in the CCMA or a court deciding that the employment relationship has not been irrevocably destroyed and that the dismissal is therefore unfair. Item 3 (4) of the Code of Good Practice: Dismissal in Schedule 8 of the LRA states that: “Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable.” The item gives a few of examples of serious misconduct including gross dishonesty, wilful endangering of the safety of others, wilful damage to the property of the employer, physical assault on the employer, fellow employee or client, or gross insubordination.
The CCMA arbitrator and later the LAC appear to have taken this item of the Code into account in deciding that the misconduct was not serious enough to destroy the employment relationship and to merit dismissal.
In the light of the above employers should:
- If they believe that the misconduct does merit dismissal, be able to prove that the employee has made continued employment relationship intolerable by his/her actions
- Inform themselves as to how to prove that a particular act of misconduct does merit dismissal before deciding to dismiss the employee
- Not assume that every sexual act constitutes sexual harassment or that every perpetrator of such acts automatically deserves dismissal
- Understand that they not only have the legal duty, under the Employment Equity Act (EEA), to protect their employees from sexual harassment, but they also have, under the LRA, the duty to protect alleged perpetrators from unfair discipline.
This is a difficult and dangerous tightrope to walk. Employers should therefore get advice from a reputable labour law expert in order to decide how to deal with such matters. This will help avoid the employer falling off the tight rope hung between the EEA and the LRA.
If CCMA commissioners cannot agree amongst themselves as to what is and is not fair then lay employers and managers cannot expect to be able to make such judgements on their own. One factor that could possibly have affected the judgement of the CCMA in the Maepe case is that the CCMA, as employer, may have been too close to the case to be able to come to a consistent decision. Employers should therefore realise that the use of an external expert is important in ensuring that a proper legal and objective decision is taken.
To book for our 22 September seminar in Centurion on DEFEATING THE DANGERS OF DISMISSAL please contact Ronni on ronni@labourlawadvice.co.za or 0845217492.
BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Web Address: www.labourlawadvice.co.za.
