What should an employer do upon learning that a female employee complimenting her male colleague’s looks and long beard, was construed by him as an open invitation to reciprocate the compliment with a kiss, a beard tickle and a bear hug?
Ordinarily one would expect that a well-groomed male employee who receives a compliment from a female employee would reply with a simple “thank you”. However, this was not the case in a recent dispute that served before the Labour Court in South Africa.
The employer instituted a disciplinary hearing and dismissed a male employee after establishing the following facts:
During an encounter in the lift, a female employee complimented a male employee on the length of his beard, told him that it looked good and enquired why he kept his beard long. In turn, he responded by tickling her on the side of her face with his beard, gave her "a bear hug" and kissed her on her neck and face.
The starting point for a proper determination of the severity of such allegations is to consider the employer’s policies and procedures on sexual harassment which employees must, at all reasonable times, be familiar with. In the absence of such policies and procedures, the Employment Equity Act Code of Good Practice on the Handling of Sexual Harassment Cases in Workplaces should prevail. The perpetrators and victims of sexual harassment may include but are not limited to employees, managers, supervisors, job applicants, clients, suppliers and/or contractors.
Sexual harassment in whatever form is viewed and defined as unwanted conduct of a sexual nature. Sexual harassment impinges on a proper and productive working environment and is in direct contravention of the Employment Equity Act (“EEA”), and is also regarded as a form of discrimination.
It has long ago been established that “sexual harassment is the most heinous misconduct that plagues a workplace; not only is it demeaning to the victim, it undermines the dignity, integrity and self-worth of the employee harassed. The harshness of the wrong is compounded when the victim suffers it at the hands of his/her supervisor. 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...”
An examination of whether sexual harassment took place involves considering whether the sexual conduct or attention complained of is persistent, even though a single incident of harassment is sufficient to constitute sexual harassment.
Furthermore, the recipient of the unwelcome conduct must have made it clear that the behaviour in question is considered offensive; and/or the perpetrator should have known that the behaviour is regarded as unacceptable.
In this case, however, the court held that in some instances it is understood that the recipient of sexual harassment may be unable to immediately express his or her revulsion at the conduct in question, and it is not uncommon for recipients to process what had just happened, gather their thoughts and then act on the conduct in question at a later stage. In other words, the mere fact that the recipient has not immediately made it clear that he or she is taking offence to the conduct in question, should not lead to a conclusion that there was consent.
The Labour Court found among others that the female employee’s compliment was clearly innocuous and did not deserve any response other than a simple ‘thank you’.
It is plain and simple: compliments have never been, nor can they ever be an invitation to invade a colleague’s personal space and/or violate their bodily integrity and human dignity.
The Court therefore dismissed the employee’s review application and agreed that the Commissioner reached a reasonable decision based on the evidence before him.
It is imperative that employers be aware that as soon as an employee lodges a complaint or grievance of sexual harassment, an employer is required to act within the strict confines of its policies and procedures, the Labour Relations Act and the EEA.
The employer must among others promptly investigate the sexual harassment allegations; ensure confidentiality of the persons involved; take the necessary steps to eliminate the conduct; institute a disciplinary hearing, where applicable; timeously issue the disciplinary charges and afford the perpetrator an opportunity to be represented during the disciplinary hearing.
In the event that the employee is found guilty of sexual harassment, the conduct must attract the severest of penalties.