Describing sexual harassment as the “most heinous crime” at the workplace in the matter of:
Motsamai v Everite Building Products (Pty) Ltd, the Labour Appeal Court (“LAC”) made it clear on 4 June 2010 that the courts expected employers to adopt a zero tolerance approach to the most underreported misconduct at what is required to be a safe and protected environment.
The LAC continued to say:
 “Sexual harassment goes to the root of one’s being and must therefore be viewed from the point of view of a victim; how does he/she perceive it, and whether or not the perception is reasonable.”
This principle requires a finder of fact to view the allegations not only on a factual basis, but to also have regard to the victim’s psychological make-up and other factors that may have played a role rather than to predominantly rely on the harasser’s defence which, in most instances, either boasts of consensual conduct, or is based on bare denial.
After having read the transcript of the adversarial conduct exhibited by the employer’s legal representative in the Labour Court, on 7 March 2017 the LAC expressed its displeasure at the insensitivity displayed towards the victim in the matter of Liberty Group Limited v Margaret Masango (JA 105/2015):
“From the record what is apparent is a vicious and sustained attack launched by the appellant, through its counsel, on the respondent’s person, her motives and credibility and the reliability of her evidence over some three days of unacceptably harsh, cruel and vicious cross-examination. The result was that she became victim to unwarranted and unjustified secondary harassment at the hands of the appellant, an issue that was taken up by this Court with counsel at the outset of the hearing.”
However, it is not only legal practitioners who have come in for a drubbing from the court of late because of the manner in which the victim in a sexual harassment matter was treated.
On 27 February 2018 a CCMA commissioner invited the wrath of the review court in the matter of Rustenburg Platinum Mines Limited v UASA obo Steve Pietersen and Others (per Tlhotlhalemaje J; Case no: JR 641/2016) for having retrospectively reinstated a manager, one Mr Steve Pietersen, because the victim, in the commissioner’s view, was docile, did not “express her displeasure at Pietersen’s conduct” loudly enough, and waited too long to report the harassment to justify the latter’s dismissal.
The following passage was quoted from the Arbitration Award:
“‘…, I am persuaded that the Applicant had made sexual advances towards the victim, but that however, he was encouraged to continue doing so, by the docile conduct of the victim and consequently that, such conduct did not amount to unwanted sexual harassment’. (Sic)
In analysing the manager’s proposal that he should move in with the victim, ostensibly to help her pay expenses while sleeping with her, the commissioner concluded that this was nothing more than “a proposal of love”, and that it didn’t constitute sexual harassment because:
“the victim did not clearly and unambiguously, express to him/her unhappiness at his proposal, a fact which is eminently relevant and material to the Applicant’s future conduct towards the victim (…)”.
At both the disciplinary hearing and arbitration Pietersen flatly denied that he had made any such proposal or that he ever said anything that could be construed as sexual advances, then or at any time between 2007 and 2015. He accused the victim of “fabrication”, and of “planning and plotting the whole thing”.
The court disagreed strongly with the commissioner that the victim had neither rejected nor rebuffed Pietersen’s persistent attempts to have a sexual relationship with her and/or that his conduct was nothing more than the “actions of someone love-struck, or ‘proposing love’”.
The court held that the provisions of clause 5.4 of the 2005 Code of Good Practice on the Handling of Sexual Harassment Cases, provided that conduct such as Pietersen’s behaviour “constituted an impairment of the complainant’s dignity, taking into account her circumstances and her junior position vis-à-vis Pietersen, and that in the absence of reciprocation, there was no requirement for the complainant to say no in unambiguous terms as suggested.”
It is common cause that the victim never reciprocated Pietersen’s advances during the 8 years in question. That being so the court held said that it could not comprehend how the commissioner could have concluded that her response was “docile and inviting” as “silence in the face of harassment (…) can never be a hint for acquiescence”.
The court found that the victim’s failure to report the harassment for a period of time did not impact on her credibility, nor did it send a message to Pietersen that she would eventually agree to his sexual advances. Instead of jumping to conclusions as the commissioner did, the court found that “one must look deeper and objectively into the reasons incidents of sexual harassment are not immediately reported. This examination again has to do with how human beings react differently to the same or similar set of circumstances.”
While the LAC in the Liberty matter lashed counsel for his unacceptably harsh, cruel and vicious cross-examination over a period of some 3 days, the Labour court not only commented that CCMA and Bargaining Council commissioners need specialised training to hear sexual harassment matters, but it further handed down one of the most scathing judgments ever to come out of the court when it made the following comments and observations in the 26-page judgment:
• the commissioner’s findings were “worrying in the extreme”; and “inexplicable”;
• there was no basis to have concluded that the victim’s evidence was “vague”;
• that the Commissioner “found comfort in casting aspersions on” the victim’s “credibility without just cause”;
• that the commissioner’s conclusions were “patriarchal and misogynistic in the extreme” and that it denoted
“a right or entitlement. The message is that 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”;
• that the commissioner erroneously held it against the victim that
“no evidence had been led to demonstrate that the employment relationship had irretrievably broken down”;
• that the Commissioner
“viewed the complainant as an aggrieved/begrudged employee as a result of the disciplinary processes against her” while “(a)ll that Pietersen had offered was conspiracy theories and denials. How the Commissioner was persuaded by mere denials in the face of the evidence by the complainant and other witnesses is beyond comprehension”.
• The court further held that:
“The significance of the 1998 and 2005 Codes is that they essentially spoon-feed Commissioners in terms of what they must look for in determining such disputes, and it is in this regard that the Commissioner in this case was found lacking.”
• The court expressed difficulty with the fact that the commissioner “failed to appreciate that the conduct complained of was also unwelcome” and that the corroborated evidence provided by two other witnesses were disregarded, resulting in what can only be described as an absurd finding that Pietersen was merely amorous and love-struck.
In the circumstances the court found that the victim’s failure to report the harassment for a period of time did not impact on her credibility, nor did it send a message to Pietersen that she would eventually agree to his sexual advances.
The court warned against the desire to jump to conclusions as the commissioner did, and cautioned that “one must look deeper and objectively into the reasons incidents of sexual harassment are not immediately reported. This examination again has to do with how human beings react differently to the same or similar set of circumstances.”
It is apparent from these judgments that the court has adopted a policy of zero tolerance towards finders of fact who favour a patriarchal defence rather than to view the evidence from the victim’s point of view.