More than ever before, the spotlight has been shone on sexual harassment in the workplace and more victims are telling their stories.

In Rustenburg Platinum Mines Limited v UASA obo Steve Pietersen (2018) 39 ILJ 1330 (LC) (27 February 2018) the Labour Court delivered a scathing judgment wherein it criticised a CCMA commissioner for their ruling which took a “misogynistic, patriarchal and insensitive approach” towards allegations of sexual harassment.
In the case, Pietersen held a senior position with the Applicant as an engineering specialist.

The Applicant investigated allegations of sexual harassment made against Pietersen by Kgole, who was employed as a boiler maker. After the investigation, Petersen was suspended and charged with misconduct for committing sexual harassment by:

• Suggesting that Kgole stays with Pietersen to help her with expenses; and
• Proposing to her that they should sleep together.

A disciplinary hearing was convened and Pietersen was dismissed. He was aggrieved by the outcome and referred an unfair dismissal claim to the CCMA.

As the CCMA hearing, Kgole testified that the sexual harassment had continued for many years despite Kgole’s rejection of these advances. She testified that Pietersen had at one stage informed her that he would help her get promoted if she agreed to sleep with him.

These allegations of sexual harassment went unreported for numerous years. Kgole further testified that she did not immediately report the matter as she was concerned, she would ruin Pietersen’s life. She was also concerned about the impact this would have on Pietersen’s wife, who also worked for the same employer. Other Employees testified Kgole had confided in them about Pietersen’s conduct.

Pietersen denied that he made any sexual advances towards Kgole. He further accused her of holding a grudge against him since she was disciplined in 2007 and for her suspension prior to making the allegations of sexual harassment.
The commissioner described Pietersen’s conduct as at best, being a love proposal. He did not find the conduct of Pietersen as untoward as Kgole did not “clearly and unambiguously, express unhappiness at his proposal” but found that she was docile in rejecting them. The commissioner found that although Pietersen may have made advances of a sexual nature, it did not constitute sexual harassment and therefore held that his dismissal was unfair.

On appeal, the Labour Court expressed shock and horror at the findings of the CCMA and overturned the commissioner’s decision, ruling that the dismissal was substantively fair. The judge held that a workplace is not “a lonely hearts’ club for love-sick employees”. While employees may be attracted to each other, conduct can cross the line to sexual harassment where is creates a sexually hostile and intimidating work environment that undermines the dignity, privacy and integrity of the harassed.

The commissioner concluded that the failure to report the incident timeously was an indication that Kgole had encouraged Pietersen to conclude that she was not averse to his conduct. The Labour Court held that this conclusion is “patriarchal and misogynistic in the extreme”. Further, silence or docile response cannot be equated with an invitation.

This judgment demonstrates the seriousness with which the Labour Courts are viewing sexual harassment in the workplace. Further it shows that it will not allow victim-blaming or seeing sexual harassment as love proposals.
In light of this judgment, Employers should review their sexual harassment policies accordingly. This is especially important considering that an employer may be held liable for damages in terms of section 60 the Employment Equity Act in circumstances where it has failed to take proactive steps to guard against sexual harassment. For assistance with any labour matter, please contact SchoemanLaw Inc.

Written by Sixolile Timothy, Attorney, Schoeman Law