Sexism in the workplace, although a serious issue, is not automatically a cause for dismissal. Context is everything when determining how to address an incident in the workplace. Allegations against an employee that come to light after their dismissal and before their CCMA hearings are inadmissible if they have not yet been investigated properly. 

Strauss and SA Equestrian Federation (2022) 43 ILJ 1921 (CCMA) 

Case Summary 

The applicant in this case was an employee of the SA Equestrian Federation (SAEF), the major national organisation representing equestrian sports in South Africa.

The applicant, who was employed as the general secretary at the time, had been accused of misconduct, namely sexism in the workplace. He was dismissed from his position before his disciplinary hearing pertaining to the incident of sexism. The applicant lodged a dispute with the CCMA, believing his dismissal to be unfair.

A pre-arbitration minute was concluded by the parties involved, in which they agreed on the points to be resolved. Firstly, whether the applicant’s dismissal was an appropriate response to his misconduct, and secondly, whether the trust relationship between them had indeed been destroyed as the respondent claimed.

The applicant then tried to amend this pre-arbitration minute when arbitration had already commenced. The CCMA commissioner refused his application on the grounds that both parties understood that they had already defined the relevant points of their disagreement, and there were no special circumstances allowing the applicant to escape the agreement, which had already been reached in the pre-arbitration minute.

The incident of misconduct, which prompted the dismissal, had occurred during a meeting to resolve a dispute between the Endurance Riding Association of SA (ERASA) and the Distance Riding Association (DRASA), which the applicant had presided over.

During this particular meeting, an issue had arisen as to money already spent on marketing and bibs, and the applicant had responded, “That should not be a problem, we have got five ladies here. Let’s take out your sewing machines and let’s sew bibs.”

Most people in the room had laughed, but Ms B had remarked that it “sounded like sexism”.

She lodged a complaint shortly afterwards, both about his remark and also the general environment of sexism within the organisation. She proposed that the matter be resolved by discussion and mediation. Instead, the judicial committee of SAEF scheduled a disciplinary hearing to address multiple issues with the applicant, including sexism, insubordination and sharing personal information of another employee, and the dismissal was seen by the respondent as a way to manage risk. In the interim, more allegations against the applicant had come to light, namely indecent assault in the workplace and, thus, the respondent argued that at this point the trust relationship was destroyed and there was now no way for him to be reinstated.

The commissioner pointed out that the dispute was about the fairness of the dismissal of the employee under the specific conditions which existed at the time, and that his role was to determine the fairness of what had already been done, not to decide what should have been done in such a case.

He found it telling that the co-worker who had complained of the applicant’s sexism did not want him dismissed in the first place. The co-worker testified that she wanted to use the incident as a springboard to address the general culture of sexism within the organisation, not to get rid of one specific employee, and SAEF had told her they were happy to consider mediation of the issue.

The commissioner found it odd that Ms B was not even present at the disciplinary hearing, and also questioned whether the trust relationship between the applicant and respondent was truly destroyed, as claimed by the respondent, as quite some time had elapsed between the incidents occurring and the scheduling of the disciplinary hearing.

The commissioner made it clear that while sexism is a serious transgression, “context is everything”. The transgression, taken in context, was not considered serious enough to necessarily warrant dismissal when progressive discipline could have been tried first.

As for the allegations of indecent assault, which had come to light in the interim, the commissioner expressed that these had not been investigated or ruled upon as yet, and that any evidence in that regard would be inadmissible, not having anything to do with the current issue.

The dismissal was found to be unfair, and the respondent was ordered to reinstate the applicant to the position he held at the time of his dismissal, and to restore his benefits.

Published by Labour Guide