Credible evidence outweighs denial
Introduction
Complaints of sexual harassment are frequently met by denial. The denial takes various forms from ‘it didn’t happen’ to ‘it was misunderstood’ or it was ‘consensual’ or even that ‘the alleged victim initiated the conduct’.
The Labour Court has issued a number of judgments in the past few years in which emphasis is placed on the Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace. It is apparent from the lengthy analysis of the Code in University of Venda v Maluleke & others (JR2125/13) [2017] ZALCJHB 72 (28 February 2017) just how important the code is.
The facts
A university lecturer was accused of sexual harassment by three students. Following a protracted disciplinary hearing by a third party, the lecturer was found guilty and dismissed.
The lecturer denied throughout that he was guilty of sexually harassing the students.
Although the arbitrator found him guilty on at least one of the charges, he concluded that the lecturer’s conduct was simply ‘inappropriate’ as opposed to constituting sexual harassment. Therefore he found that the dismissal was procedurally fair, but substantively unfair. The lecturer was retrospectively reinstated.
The judgment
The court questioned the reasoning of the arbitrator and his conclusion that asking a student for sexual favours in exchange for giving her better marks was only ‘inappropriate behaviour’ and did not amount to sexual harassment because her response was that she would ‘think about it’ (paragraph 57).
The court analysed the nature of the power relationship between a lecturer and a student and concluded (with reference to the Code) at paragraph 73 that she provided this response to “escape from the situation, instead of incurring the ire of her harasser by expressly rejecting the advance”.
The court found that the lecturer was guilty of sexual harassment and that dismissal was the appropriate sanction.
The importance of this judgment
This judgment places a strong emphasis on the importance and application of the Code. It further states categorically that dismissal is the appropriate sanction in instances of sexual harassment and quoted with approval from another judgment, restating the finding that it “is the kind of conduct that is a scourge in the workplace, and must be rooted out of existence”.
