Author: Saadiqah Abdool Razak
What is sexual harassment?
Sexual harassment is a legally prohibited form of discrimination based on sex, gender or sexual orientation. It encompasses unwelcome sexual behaviour, whether direct or indirect, that a reasonable person would recognise as inappropriate. Such behaviour can be offensive, create discomfort or instill a legitimate fear of harm in the affected employee.
Harassment can be indicated verbally or through non-verbal actions like walking away or not responding. Even without an explicit refusal, if the behaviour is clearly inappropriate, it can still constitute harassment. This includes any sexual conduct – physical, verbal or non-verbal – and may involve victimisation, quid pro quo, favouritism or creating a hostile work environment. A single instance of unwelcome conduct is enough to be considered harassment if it undermines the employee’s dignity, taking into account their situation and the power dynamics in the workplace.
Labour court Thandukwazi Maxwell Magcaba vs Transnet Rail Engineering
In a recent legal battle, a court dismissed an application for review filed by an employee challenging his dismissal over multiple sexual harassment allegations. The case revolved around whether the arbitrator had appropriately handled the evidence and whether the findings were reasonable.
The applicant (the employee that was dismissed), facing 13 counts of sexual harassment, argued that the arbitrator attached undue weight to hearsay evidence, failed to properly evaluate the evidence and overlooked inconsistencies in the complainant’s version of events. Additionally, the applicant claimed that the charges were fabricated as retaliation for work-related issues.
One of the primary arguments was that evidence such as voice recordings, phone calls and text messages, which were not presented during arbitration, should not have influenced the arbitrator’s decision. However, the court found that even without this evidence, other direct interactions supported the charges. This ground for review was thus rejected.
The applicant criticised the arbitrator for not properly assessing the credibility and reliability of the evidence, especially given the lack of witnesses to support the complainant’s claims. The court, however, noted that the nature of sexual harassment often prevents the presence of witnesses and that the complainant’s emotional distress, corroborated by multiple witnesses, was consistent with her allegations.
The applicant’s claim that the harassment allegations were a fabrication was also dismissed. The court found the complainant’s version credible and consistent, despite some minor discrepancies in the timeline, which were attributed to the passage of time. The court emphasised that even a single incident of sexual harassment is sufficient for dismissal, rendering the applicant’s denials ineffective.
The court concluded that the arbitrator’s findings were reasonable and supported by the evidence, upholding the decision to dismiss the employee. The application for review was denied, and each party was ordered to bear their own costs.
This ruling underscores the seriousness with which courts treat sexual harassment allegations and the importance of supporting victims, even in the absence of direct evidence.
This case serves as a crucial reminder of the severe consequences of workplace harassment and the responsibility employers have in creating a safe environment for all employees. At HRTorQue, we offer comprehensive services to assist businesses in navigating complex harassment cases and ensuring compliance with labour laws. Our Harassment in the Workplace webinar delves deeper into these issues, offering practical guidance on preventing and addressing harassment. You can access the webinar here to gain valuable insights into safeguarding your business and supporting your employees effectively.