SUMMARY

Section 138 (6) of the Labour Relations Act 66 of 1995 (“LRA”), requires a Commissioner presiding over an arbitration hearing to take into account any code of good practice that has been issued by NEDLAC relevant to the proceedings over which he/she presides.

A mere reference to the Code in an award does not constitute compliance with this provision. Rather, the Commissioner must properly consider and apply the provisions of the Code.

In respect to matters concerning sexual harassment, Commissioners must consider and apply the 2005 Code of Good Practice. The Code does not preclude subtle forms of communication such as “unwelcome hints and suggestions” from the ambit of the definition of sexual harassment. Further, the Code requires Commissioners to exercise appropriate sensitivity when assessing the credibility of either party’s versions by taking into account power imbalances that may exist between the alleged complainant and the perpetrator; in particular the complainant’s fear of reprisal.

COURT’S DECISION

In the case of SA Metal Group (PTY) LTD and Commission for Conciliation Mediation and Arbitration, Stephen Bana NO, James Beasely [2014] ZALCCT15, the Labour Court had to determine whether an arbitration award granted in favour of a divisional director who had been dismissed for sexual harassment could be reviewed and set aside. In order to make this determination, the Court had to determine whether the Commissioner had taken proper account of the 2005 Code of Practice on the arbitration of sexual harassment matters in reaching his decision.

The director had been charged with the sexual harassment of a subordinate female member of staff working in the company’s human resources department; he had passed a number of remarks and made physical contact with the complainant over the course of a number of months. The director was dismissed after an internal disciplinary hearing. He subsequently challenged the substantive fairness of the dismissal where the presiding Commissioner granted an award in his favour on the basis that the complainant had not made it immediately clear to the director that the advances were unwanted, nor had she reported his actions.

Furthermore, the Commissioner found that the remarks passed by the director were not explicitly sexual in nature, purely subjective and thus open to interpretation. The Court found the Commissioner’s finding in this respect to be unwarranted in that he failed to take cognisance of the provisions of the Code which stipulate that “unwelcome innuendo, suggestions and hints” may fall within the Code’s definition of sexual harassment.

The Court also found the Commissioner’s reasoning in regard to the complainant’s failure to make her discomfort immediately known to the director to be defective. In this regard, the Court held that whilst Section 61 of the Employment Equity Act stipulates that instances of sexual harassment must be immediately reported to the employer, the Code requires that “immediately” be construed as “as soon as reasonably possible” taking into account the power imbalances that exist in the workplace, in particular the complainant’s fear of reprisal.

The Court dismissed the Commissioner’s finding that conduct will only constitute sexual harassment after the offender is made aware of the discomfort his/her conduct is causing to the complainant. The Court based this finding on the definition of sexual harassment in the Code which states that “Sexual attention becomes harassment if: i) the behaviour is persisted in, although a single incident of harassment can constitute sexual harassment; and/or ii) the recipient has made it clear that the behaviour is considered offensive; and or iii) the perpetrator should have known that the behaviour is regarded as unacceptable.” The use of “and/or” in this definition make it clear that communication of discomfort or disapproval is not required for conduct to be deemed as sexual harassment.

The Court further criticised the Commissioner’s failure to take into account the director’s duty as an employee in a senior managerial position not to act in a manner that “would contribute to a hostile work environment.” In light of the above, the Court held that in failing to take proper account of the Code, the Commissioner had committed a gross irregularity in terms of Section 145 (2)(a) of the LRA and ordered that the arbitration award be set aside and replaced with a finding that the director’s dismissal had been substantively fair.

Importance of the case

This case serves to highlight the very broad scope of the definition of sexual harassment in the Code. Employers should ensure that this definition is incorporated in their organisation’s Code of Conduct. Employers should ensure that employees at all levels of the organisation are aware of the definition and its far reaching consequences so as to ensure compliance therewith.

Written by Jacques van Wyk, Director; and Andre Van Heerden, Associate, Werksmans Attorneys