South Africa: I Didn't Know I Was Sexually Harassing You – A Valid Defence?

Last Updated: 12 June 2018
Article by Neil Searle

In recent times, and in keeping with the global mood, our courts have significantly tightened the noose on sexual harassment in the workplace.

For example, in the 2015 judgment of the Labour Appeal Court in Campbell Scientific Africa (Pty) Ltd v Simmers and Others, the court made its position clear when it stated that sexual harassment is "the most heinous misconduct that plagues a workplace". That our courts are determined to rid the workplace of such behaviour was made even clearer in the recent decision of the Labour Court in Rustenburg Platinum Mines Limited v UASA obo Pietersen and Others [2018] ZALCJHB 72.

In this case, Mr Pietersen and Mrs Kgole were both employed by Rustenburg Platinum Mines Limited. Mrs Kgole alleged that she had been sexually harassed by Mr Pietersen for a period of approximately seven years, between 2007 and 2014. Several incidents were said to have occurred over this time. These incidents included:

  • Mr Pietersen suggesting to Mrs Kgole at a company braai that she should move in with him to save living costs, despite both of them already being married;
  • Mr Pietersen informing Mrs Kgole that he could assist her in obtaining a promotion in return for sexual favours; and
  • Mr Pietersen seeking on various occasions to persuade Mrs Kgole to sleep with him on work trips.

Mrs Kgole consistently rejected Mr Pietersen's advances. Matters eventually came to a head when Mr Pietersen required Mrs Kgole to perform work that fell outside the scope of her responsibilities. Feeling aggrieved, Mrs Kgole sent Mr Pietersen two Whatsapp messages informing him that she intended to report the harassment if he did not stop. Ultimately, however, it was Mrs Kgole's husband who laid a complaint of sexual harassment against Mr Pietersen on his wife's behalf. Following a preliminary investigation, a disciplinary hearing was convened. Mr Pietersen was found guilty of sexual harassment and was dismissed. Displeased with his dismissal, Mr Pietersen, through his union UASA, referred an unfair dismissal dispute to the CCMA.

During the proceedings before the CCMA, Mrs Kgole was called on to explain why she had not reported Mr Pietersen's behaviour for a period of roughly seven years. Mrs Kgole responded that she had feared further victimisation and that she was concerned that the truth would hurt Mr Pietersen's wife, whom she regarded as a close friend. The Commissioner took issue with the fact that Mrs Kgole had not clearly and unambiguously said 'no' to Mr Pietersen's advances. The Commissioner reasoned that the delay by Mrs Kgole in reporting the incidents timeously indicated that Mrs Kgole had encouraged Mr Pietersen to conclude that she was not averse to his conduct. On that basis, the Commissioner found that Mr Pietersen's dismissal was unfair because Mrs Kgole's "docile conduct" in the face of Mr Pietersen's advances amounted to encouragement and therefore could not be regarded as sexual harassment. 

The company subsequently took the Commissioner's decision on review in the Labour Court. The Labour Court was damning in its critique of the arbitration award. The court stated that the Commissioner's decision was "patriarchal and misogynistic in the extreme". The court further stated that "the message [sent by the award] is that harassers can persist with the unbecoming conduct, with the hope that they will get lucky at some point, as long as the complainant does not report the matter"

With these concerns in mind, the court went on to say that -

"In the face and growth of global movements such as '#MeToo'; 'The Silence Breakers'; '#NotInMyName', and #BalanceTonPorc or "out your pig", there is an even greater need for more sensitization to the scourge of sexual harassment in the workplace. Equally so, there is an even greater need for the Commission for Conciliation Mediation and Arbitration (CCMA) and Bargaining Councils to place more emphasis on specialised training to deal with such cases as called upon by the provisions of Item 11.4 of Amended Code of Good Practice. The review application in this case and the manner with which the Commissioner approached the allegations of sexual harassment is a reminder of the need for the urgency and seriousness with which such training is necessary, and for it to be provided on an on-going basis".

The Labour Court therefore had no hesitation in setting the arbitration award aside and replacing it with an order that Mr Pietersen's dismissal was fair. Furthermore, the court ordered UASA to pay the costs of the application on the grounds that the union should have known that the Commissioner's decision was indefensible and, accordingly, should never have opposed the application.

Employers and employees should pay careful attention to this judgment and, in particular, the court's statement that nowhere in the Code of Good Practice on Sexual Harassment does it require the accused employee to have been aware that their conduct was unwanted and offensive to the complainant in order for the conduct to constitute sexual harassment. This welcome statement on the law will narrow the scope of possible defences otherwise available for perpetrators of sexual harassment.

Simply put, it is no longer good enough for alleged perpetrators of sexual harassment to claim that "I did not know I was sexually harassing you!"

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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