In the decision of Ekurhuleni Metropolitan Municipality v South African Local Government Bargaining Council and Others (2022) 43 ILJ 825 (LAC), the court examined incidents of sexual harassment on a member of the public by an official employed in the public sector and reiterated that sexual harassment at the hands of public officials offends not only against the constitutionally entrenched right to dignity, privacy and integrity but against the basic values and principles that govern public administration.
Facts of the Case
In this case, the complainant attended the Edenvale vehicle licensing centre on 23 June 2015 to book her vehicle learner’s license test. When she approached the cashier, he made sexual remarks and stated that she looks like she tastes nice in bed, or words to that effect. She was shocked, did not know what to do or say, and accordingly left.
When she returned to the licensing centre on 31 August 2015 to take her learner’s licence test, the same cashier signed her certificate and took her fingerprints. He made sexual remarks once again and said that she looks like she is nice in bed. He looked at her address, said he will keep in it in mind and come over to her place. When she had to put her fingerprint on the learner’s certificate, he rubbed her hand in a very uncomfortable manner. She took her certificate, went to reception to ask where she can lodge a grievance, and then proceeded to the supervisor’s office. The supervisor confronted the perpetrator, but he denied all accusations. She advised the supervisor that she would lodge a formal complaint.
In an internal disciplinary hearing, the perpetrator was found to have committed two counts of sexual harassment and he was subsequently dismissed.
Referral to Arbitration
The perpetrator then referred an unfair dismissal dispute to the South African Local Government Bargaining Council. The arbitrator analysed the evidence and found that the perpetrator had committed the misconduct as alleged by the complainant, namely sexual harassment. The arbitrator stated that since the perpetrator had worked for the municipality for over 10 years, had a clean disciplinary record, and even though the sexual utterances made and inappropriate touching were found to have been of a serious nature, the arbitrator took the view that the sanction of dismissal was too harsh. The arbitrator reinstated the perpetrator with a final written warning.
Review by the Labour Court
The municipality brought an application to review the arbitrator’s decision. On review, the Labour Court took issue with the complainant’s failure to report the initial incident or to disclose it to her family or friends. The Labour Court also stated that the complainant’s version could not be corroborated nor was there sufficient evidence to prove the guilt of the perpetrator. The Court noted that the complainant would not have approached the same person without reservation considering her experience with the perpetrator.
The Labour Court found that the arbitrator had committed a misdirection in finding that the misconduct had occurred when there was a scarcity of explicit evidence about what transpired on 23 June 2015 and 31 August 2015. The Labour Court further found that the arbitrator failed to consider the objective facts, such as that the policy directive of the Municipality required the manipulation of a hand to take fingerprints and that the complainant did not pull her hand away in response to the perpetrator’s conduct. The Labour Court found that the complainant’s evidence should have been rejected. In conclusion, the Labour Court found the decision of the arbitrator to be irregular and that the perpetrator should have been found not guilty of both charges.
Appeal by the Labour Appeal Court
Savage AJA noted that the veracity of the complainant’s account was never challenged by the perpetrator in cross-examination nor was it put to the complainant that her version was false nor was this denied by the perpetrator. Moreover, the record of the arbitrator clearly shows that the perpetrator admitted that he had acted as alleged by the complainant.
The Labour Appeal Court noted the sentiment as expressed in McGregor v Public Health and Social Development Sectoral Bargaining Council (2021) 42 ILJ (CC), namely, 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 court commented that the complainant was entitled to access to public services without having her rights violated and that there was no obligation on her to seek out a different official to serve her in order to safeguard her rights.
The Labour Appeal Court found that sexual harassment committed by an official employed in the public sector, during the provision of public services to a member of the public, constitutes serious misconduct insofar as it amounts to an abuse of a public position of authority. Moreover, such harassment was committed more than once and directed at the same member of the public, which makes it even more serious. Savage AJA of the Labour Appeal Court had regard to the full conspectus of the evidence before him and substituted the decision of the arbitrator for that of dismissal.
Written by Clarissa Pillay and Maxine Naude