The Labour Court previously held that trying your luck is not sexual harassment, however, the Labour Appeal Court has now held that trying your luck is sexual harassment.

“At its core, sexual harassment is concerned with the exercise of power and in the main reflects the power relations that exist both in society generally and specifically within a particular workplace. While economic power may underlie many instances of harassment, a sexually hostile working environment is often less about the abuse of real economic power, and more about the perceived societal power of men over women. This type of power abuse often is exerted by a (typically male) co-worker and not necessarily a supervisor.”

In the recent case of Campbell Scientific Africa (Pty) Ltd v Simmers, the Labour Appeal Court considered the type of conduct that constitutes sexual harassment.

Simmers, a senior employee of Campbell Scientific Africa (Pty) Ltd (CSA), was called to attend a disciplinary hearing by CSA, on allegations of sexual harassment, unprofessional conduct and bringing the name and image of the company into disrepute. The charges arose after Simmers accompanied CSA’s contractor, Frederick Le Roux, and CSA’s consultant, Catherine Markides, to Botswana for a site visit to survey if they could install some equipment for the Botswana Power Corporation. While there, the three stayed at a lodge and had supper together. At some point after supper in the parking lot Simmers said to Markides, “Do you need a lover tonight?” Markides made it clear that she did not and that she had a boyfriend.  Simmers responded, “if you change your mind during the night, come to my room”. Markides did not change her mind and Simmers pursued the matter no further.

The next day, Markides mentioned the incident to Le Roux before leaving for Australia. Upon his return to South Africa, Le Roux mentioned the incident to CSA’s managing director, Visagie who then sent an email to Markides apologising for Simmers’s conduct and requesting details. Markides responded with a short declaration on both the inappropriate advances and unprofessional conduct by Simmers. The declaration by Markides formed the basis of the disciplinary hearing where the chairperson of the hearing found that Simmers had committed the misconduct complained of and CSA dismissed him.  Simmers referred an unfair dismissal dispute to the CCMA.

In the arbitration proceedings, the arbitrator concluded that the sexual harassment complained of was relevant to the workplace, although Markides was not an employee of CSA and the incident occurred outside of working hours. Further, the arbitrator found ‘Simmers’s proposal to Markides as sexual harassment in the form of unwanted verbal sexual advances’ and accordingly ruled that the dismissal was fair.

Aggrieved by the commissioner’s award, Simmers took the matter on review to the Labour Court. The question for determination by the Court was whether the words “do you want a lover tonight” and “come to my room if you change your mind” constitute sexual harassment or mere sexual attention? And if the words “do you want a lover for tonight” do in fact constitute sexual harassment, are these words sufficiently serious to justify a dismissal? The Court also had to consider whether it was relevant that Simmers and Markides were not co-employees when considering the context within which the alleged sexual harassment took place?

The Court found it relevant that Simmers and Markides were not co-employees, that they would probably never work together again since Markides had gone to Australia and that “there was no disparity of power” between them. In addition, the conduct was “once-off” and was found to have occurred outside of the workplace and outside working hours.

In respect of whether Simmers’ conduct constituted sexual harassment or not, the Court distinguished between sexual attention and sexual harassment and found that there was no evidence to suggest that Simmers’ conduct crossed the line where sexual attention becomes sexual harassment.

The Court held that for a single incident to constitute sexual harassment it must be serious. It should constitute an impairment of the complainant’s dignity, taking into account her circumstances and the respective positions of the parties in the workplace. According to the Court, this nearly always involves an infringement of bodily integrity such as touching, groping, or some other form of sexual assault; or quid pro quo harassment. However, it was common cause in this case that Simmers did not persist in his overtures once Markides told him that it was unwelcome, he backed off. It was found that Simmers words were certainly inappropriate, albeit uttered “more in hope than expectation”.

The Court concluded that, while Simmers’s comment was tantamount to sexual attention, crude and inappropriate, it was a single incident and was not serious. It could only have become sexual harassment if he had persisted in it or if it was a serious single transgression. Though Simmers’ comments were found to be "crude and inappropriate", they did not cross the line into sexual harassment. "It was not a demand for sex. In blunt terms, he was ‘trying his luck’.”

The Court concluded that on the facts, the conduct did not constitute harassment; but even if it did, it was not of a serious enough nature to justify dismissal as a fair sanction for a first offence. The Court found Simmers’ behaviour to be inappropriate and unprofessional and for that reason the Court ordered that he be given a final written warning valid for a year.

Dissatisfied by the Labour Court’s judgment, CSA appealed to the Labour Appeal Court. The LAC held that by its nature sexual harassment creates an offensive and very often intimidating work environment that undermines the dignity, privacy and integrity of the victim and creates a barrier to substantive equality in the workplace. The LAC referred to its earlier decision in Motsamai v Everite Building Products (Pty) Ltd [2011] 2 BLLR 144 (LAC) where it characterised sexual harassment as “the most heinous misconduct that plagues a workplace”.

The LAC found that CSA was entitled to discipline Simmers for misconduct which was both related to and impacted on his employment relationship with it.  This was so given that the misconduct occurred within the context of a work-related social event when Simmers would not have been at the lodge in Botswana and in the company of Markides had it not been for his employment with CSA and it was to CSA that Markides complained regarding Simmers’ conduct.

The LAC held that the Labour Court erred in finding that the advances made constituted inappropriate sexual attention and not harassment, were not serious and did not impair the dignity of Markides, who was not a co-employee, with whom there existed no disparity of power and when the two were unlikely to work together in the future. To the contrary, the LAC found that:

“The unwelcome and inappropriate advances were directed by Simmers at a young woman close to 25 years his junior whose employment had placed her alone in his company and that of Mr Le Roux in rural Botswana. Underlying such advances, lay a power differential that favoured Simmers due to both his age and gender. Markides’ dignity was impaired by the insecurity caused to her by the unwelcome advances and by her clearly expressed feelings of insult. As much was apparent from her evidence that she was insulted, felt “incredibly nervous” given the proximity of the sleeping arrangements at the lodge and that she programmed Mr Le Roux’s number onto her phone “just in case anything happened.”

The LAC concluded that the fact that Simmers did not hold an employment position senior to that of Markides or that they were not co-employees did not have the result that no disparity in power existed between the two. Simmers’ conduct was as reprehensible as it would have been had it been metered out by a senior employee towards his junior in that it was founded on the pervasive power differential that exists in our society between men and women and, in the circumstances of this case, between older men and younger women.

Furthermore, the fact that Simmer’ conduct was not physical, that it occurred during the course of one incident and was not persisted with thereafter, did not negate the fact that it constituted sexual harassment and in this regard the Labour Court erred in treating the conduct as simply an unreciprocated sexual advance in which Simmers was only “trying his luck”. The LAC made a strong statement that:

“In treating the conduct as sexual harassment, Markides, and other women such as her, are assured of their entitlement to engage constructively and on an equal basis in the workplace without unwarranted interference upon their dignity and integrity. This is the protection which our Constitution affords.”

The LAC held that the commissioner had regard to all relevant circumstances in arriving at a conclusion that the dismissal of Simmers was fair. The Court concluded that the dismissal sanction imposed on Simmers serves to send out an unequivocal message that employees who perpetrate sexual harassment do so at their peril and should more often than not expect to face the harshest penalty.

In the circumstances, this case signifies our court’s stance on sexual harassment. As the LAC noted, employees who commit sexual harassment must do so at their own peril and employers must not shy away from imposing the maximum sanction of dismissal to the perpetrators of sexual harassment in the workplace. The judgment in this matter carries a stern warning that sexual harassment in the workplace will be treated harshly by the courts.

Written by Siphamandla Dube, Associate, Fasken Martineau