The Labour Court has handed down judgement on a new case involving South African employee who sent an explicit video to a colleague over WhatsApp.
The employee was part of a team at the Passenger Rail Agency of South Africa (Prasa) which was tasked with the investigation on allegations of fraud and misconduct in the Eastern Cape province.
His female colleague – who lodged a claim of sexual harassment – worked as a regional human resources manager.
On 10 November 2016, the employee sent an unsolicited video depicting a couple engaging in sexual intercourse to his colleague over WhatsApp.
Upon receipt, his colleague responded by saying, ‘she does not appreciate these videos’.
The employee replied that the video was forwarded by accident and that he would delete her number from his phone so that it would not happen again.
The employee followed up with a message explaining the mistake, noting that the video was intended for a friend. He said that had he not had her number in his phone, the mishap could not have taken place.
However, his colleague did not view this as a mishap and lodged a complaint with her employer. The case was then heard by the Commission for Conciliation, Mediation and Arbitration (CCMA) and further considered by the Labour Court.
Did he send the video on purpose?
In its ruling, the Labour Court said it was clear that the employee never intended to send the pornographic video.
It said that this is supported by the reaction of the employee once he was alerted that the video reached a wrong recipient.
The fact that he reacted only after being told that the matter is to be reported is a red herring, it said.
“Like allegations of racism, allegations of sexual harassment should be viewed in a serious light. Where a clear accident had happened, it is inappropriate in my view to take advantage of the accident and flag the serious form of misconduct,” said judge Graham Moshoana.
“The fact that the video was not accompanied by any text aimed at the appellant is most telling. Generally, since the advent of the social media, WhatsApp, many if not most people use this platform as members of a group to forward amongst each other all sorts of information.
“There is no doubt that the video was explicit in nature, however of importance is whether the said video was intended for the appellant only.”
Was it sexual harassment?
The court also noted that Prasa currently has a sexual harassment policy in place which defines sexual harassment as ‘unwanted conduct of a sexual nature’.
On this issue, it came to light that the employee had actually sent a video of the same nature on 31 October – weeks before the reported incident.
However, the court noted that after realizing that it emanated from a colleague, she responded by exchanging pleasantries and was clearly not offended by the first video.
She subsequently received further messages that she did not respond to on 8 and 9 November, which she did not open because she was not interested in them.
The video of 10 November, which allegedly offended her, was not opened by her but she could tell by the image, its nature.
“Based on the above narration, it does appear that the appellant at some point welcomed receiving these types of videos,” Moshoana said.
“As I have pointed out that since the advent of WhatsApp people share videos, which at times are of sexual nature.
“The question then becomes, if a person receives such videos, some of which go viral, should that person be considered to have been sexually harassed?”
In his ruling,
Moshoana said in his ruling that this did not constitute sexual harassment.
“In this matter, the appellant only after several videos objected and whereafter, Mbatha categorically stated that it was a mistake and such videos were not intended for the appellant,” he said.
“Clearly, when regard is had to the position of Mbatha, not being a soothsayer, he could not have known that suddenly these videos are unwelcomed by the appellant. Having been told so by the appellant, there was no evidence of repetition.”
Read the full Labour Court ruling here.