“You look like you taste nice in bed” - The Realisation of Equality in a Non-Racial and Non-Sexist Workplace

In the recent case of Ekurhuleni Metropolitan Municipality v J Mabetoa and Others (JA17/2021), the Labour Appeal Court (“the LAC”) had to determine whether the dismissal of a former employee of the Ekurhuleni Metropolitan Municipality (“the Municipality”) was substantively unfair.

Written By of Cowan-Harper-Madikizela Attorneys

The genesis of the dispute concerned two incidents of sexual harassment which occurred when the complainant, an 18 year old female, attended the Municipality in order to book and take her learner’s license test. Subsequent to the complainant taking her learner’s license test, the complainant reported to a supervisor of the Municipality that she had been sexually harassed by an employee of the Municipality, Mr Justinus Mabetoa (“Mabetoa”) on two different occasions.

The acts of sexual harassment included inter alia sexual remarks such as ‘you look like you taste nice in bed’ and inappropriate touching of the complainant. At an internal disciplinary hearing, Mabetoa was found guilty of sexual harassment and dismissed.

Aggrieved with his dismissal, Mabetoa referred an unfair dismissal dispute to the South African Local Government Bargaining Council (“the SALGBC”). During the arbitration the substance of the complainant’s evidence remained unchallenged. The Municipality’s regional manager also testified that Mabetoa’s conduct threatened the Municipality’s reputation and led to an irretrievable breakdown of the trust and working relationship.

The arbitrator after hearing the evidence tendered, found it probable that Mabetoa had committed the misconduct alleged. However, taking into account Mabetoa’s years of service and clean disciplinary record, the arbitrator viewed the sanction of dismissal as too harsh and substantively unfair.

Dissatisfied with the result of the arbitration, the Municipality sought to review the arbitration award. Upon evaluating the record of proceedings the Labour Court (“the LC”), surprisingly, found the complainant’s version to be nonsensical and described the complainant’s failure to immediately report the first incident of sexual harassment as ‘unthinkable’. The LC concluded that the arbitrator had committed a misdirection in finding that the misconduct had occurred when there was no evidence to support the complainant’s version of events. The LC accordingly rejected the complainant’s version of events and dismissed the Municipality’s review application.

Understandably the Municipality appealed against the LC judgment. In this regard the Municipality argued that the LC erred in finding that the evidence tendered did not support the finding that Mabetoa had sexually harassed the complainant when he had admitted to making the sexual remarks and further showed no remorse for his actions.

On evaluation of the arguments tendered, the LAC agreed with the Municipality. The LAC found that the LC erred in rejecting the complainant’s version in circumstances where her version had not been challenged by Mabetoa. In addition, the LAC took into consideration the admissions made by Mabetoa and further found him to be an uncredible witness. The discrepancies in the complainant’s versions were furthermore minimal and did not warrant the wholesale rejection of her evidence. The LAC accordingly found the dismissal of Mabetoa to be fair and upheld the
Municipality’s appeal.

In the judgment the LAC deplored the LC’s approach as it had deviated from the constitutional imperatives which have guided the courts in matters of such a nature. In this regard, the LAC made reference to the case of McGregor v Public Health and Social Development Sectoral Bargaining Council (2021) 43 ILJ 1643 (CC) which stated that:

“today we hold in our hands a Constitution that equips us with the tools needed to protect the rights that are violated when sexual harassment occurs.”

The LC was accordingly obliged to take heed of this sentiment in its determination of the matter and its failure to do so only further contributed to the indignity endured by the complainant in the matter.

Our Courts are accordingly mandated to deal with acts of sexual harassment taking into account the constitutional imperatives to protect the rights of those that are violated when sexual harassment occurs. It is evident that in the workplace, such harassment can create an offensive and intimidating work environment that can undermine the values of dignity, equality and integrity and should accordingly be rooted out by all means necessary. It is hopeful that the Amended Draft Code on the Handling of Sexual Harassment Cases in the Workplace will assist employers in curbing and preventing any and all acts of sexual harassment.

Tanya Mulligan

Tanya Mulligan
Executive in Employment

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