An employee was dismissed during a disciplinary hearing held in response to complaints of sexual harassment and inappropriate behaviour in the workplace. He referred a case of unfair dismissal to the CCMA, but his dismissal was found to be substantively and procedurally fair.

Bulumko Pafa v Webhelp SA Outsourcing (Pty) Ltd (WECT6382-22) [2022]

Case summary

The applicant was employed as a Contact Centre Associate by the respondent company in August 2021. He was placed on precautionary suspension whereafter a disciplinary hearing was held in April 2022, during which he was accused of sexual harassment and inappropriate behaviour towards two of his female colleagues. He was subsequently dismissed later that same month whereafter he referred the matter to the CCMA.

The details of the alleged misconduct involved several incidents of the employee in question engaging in various unacceptable behaviours towards his colleagues on multiple occasions. This included inappropriate questions, and continuing to try to communicate with them, even after they had clearly expressed that they wanted him to stop and leave them alone. He was said to have forcibly taken one colleague’s phone to input his number, after she declined to give him the phone when he had sat next to her on their transport home. She also alleged that he stroked her arm in a suggestive manner after she had bluntly expressed that his attention was unwelcome.

The complainants had also been contacted by the applicant on Teams. Other claims included flirtatious behaviour alternating with episodes of shouting, swearing and humiliating them in front of multiple other people. He contacted them on social media, extensively questioned other colleagues about them, and waited for them for hours outside the workplace – all actions which had made the complainants feel anxious, unsafe and upset. He was reported to have used typical gaslighting phrases, such as “You need to heal” and “See, I told you you have issues”, when his advances were rejected by the complainants.

His disciplinary hearing had not gone well. He had been upset that the witnesses were not physically present, and a senior employee had to be called to join the hearing remotely to explain to the applicant that this was normal procedure because the witnesses were required to testify separately. He stormed out of the hearing saying, “God will see to you.”  The chairperson explained to him that his presence was not required for the hearing to be concluded, but this did not deter him from leaving. He was then dismissed in his absence.

On the first day of arbitration, the respondent requested that the witnesses (which included the employees who had reported the misconduct) testify remotely. The applicant objected, but the arbitrator agreed under specific conditions. The witnesses were kept apart from one another and a CCMA representative was present with them at the premises of the respondent company during their remote testimony.

The applicant made several disturbing remarks during his testimony, which was basically one long denial of all the claims against him. He accused the respondent of colluding with the complainants and witnesses in order to get rid of him. This accusation was found to be utterly baseless as none of the witnesses knew each other on a personal basis, and the complainants had approached the company about his misconduct independently from one another. They were not friends and there was no evidence that they had discussed the applicant prior to lodging their complaints.

The applicant claimed that one of the complainants had “bragged” in front of several colleagues about having an abusive partner and that she had described being locked in the boot of a car, which she denied having said. He attempted to psychologically profile her (according to his Google research) as having been previously traumatised and, thus, being prone to falsely accusing others of harassment or abuse.

He stated that it was reasonable for him to expect these women to clearly communicate that they were not interested in him, placing the blame on them for not making it clear enough.

On the second day of arbitration, he unexpectedly showed up at the respondent company instead of at the CCMA where the hearing was being conducted, which was a tremendous shock to one of the complainants who was there to testify remotely. It became clear that the applicant could not understand that the dispute was not between himself and the witnesses or complainants, but between himself and the respondent company.

It was common cause that the applicant had read and signed an employment contract that includes details of the respondent’s “Dignity at Work” policy, which was in place to ensure that “all employees are treated with dignity and respect in a non-threatening environment, free of harassment, bullying, discrimination and victimisation.”

This policy also lays out the duty which rests upon the company to take action on behalf of employees who are being victimised, regardless of their preference to press charges or not. The contract clearly lists harassment as a dismissible offence.

The arbitrator observed that the applicant seemed to have a poor grasp of the seriousness of his misconduct. He had no remorse or empathy for the negative impact his actions had on his colleagues. His dismissal was found to be both substantially and procedurally fair.

Submitted by Labour Guide