“I didn’t know I was harassing you” won’t fly as a defence in workplace sexual harassment cases in SA

In keeping with the global standards, South Africa’s courts have significantly tightened the noose on sexual harassment in the workplace.

This is according to Neil Searle, partner at law firm Fasken, who highlighted the recent Labour Court decision in Rustenburg Platinum Mines Limited v UASA obo Pietersen as one one such example.

In this case an employee accused another of sexually harassing her for a period of approximately seven years, between 2007 and 2014. Several incidents were said to have occurred over this time including:

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

The complainant consistently rejected these advances, Searle said, however, it was ultimately her husband who laid a complaint of sexual harassment against the harasser on his wife’s behalf.

Following a preliminary investigation, a disciplinary hearing was convened. The harasser was found guilty and was dismissed. He subsequently took the issue to the CCMA.

During the proceedings before the CCMA, the employee explained that she had not reported the harassment for a period of roughly seven years, as she had feared further victimisation and that she was concerned that the truth would hurt the harasser’s wife – whom she regarded as a close friend.

“The Commissioner took issue with the fact that the employee had not clearly and unambiguously said ‘no’ to (the) advances,” said Searle.

Because she had not timeously reported the harassment, the commissioner ruled that the dismissal was unfair because the employee’s “docile conduct” in the face of the 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.

Labour Court

According to Searle, the Labour Court was damning in its critique of the arbitration award, and stated that the Commissioner’s decision was ‘patriarchal and misogynistic in the extreme’.

It further argued that the CCMA decision meant 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.

“The Labour Court therefore had no hesitation in setting the arbitration award aside and replacing it with an order that the dismissal was fair,” Searle said.

Searle added that 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’,” he said.

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“I didn’t know I was harassing you” won’t fly as a defence in workplace sexual harassment cases in SA