Sexual harassment - evaluating evidence where the only witness is the complainant



On 27 January 2022, the Labour Appeal Court considered the fairness of a dismissal of an official at a licensing centre for sexual harassment of a member of the public. It set aside the findings of the Labour Court and the Bargaining Council and found that the dismissal was substantively fair. The judgement is a very useful one for legal- and HR practitioners as well as managers who are called upon to evaluate evidence and determine an appropriate sanction during internal disciplinary hearings. [Ekurhuleni Metropolitan Municipliaty v SALGBC and others (JA17/2021)]


Background


The complaint from a member of the public was that the employee had assisted her on two occasions – first when she booked an appointment for a learner's license, and again at a later date when she came to take the test. She alleged that on both occasions, the employee had made inappropriate sexual remarks to her and had taken note of her telephone number and address on her forms. He had also rubbed her hand in a sexual way when taking her fingerprints. Although she did not report his conduct after the first incident, she did so when it happened again.


Arbitration and Review


At the Bargaining Council, the Arbitrator found that the employee did commit sexual harassment, however he found that dismissal was too harsh given the long service and clean disciplinary record of the employee. Taken on review, the Labour Court did an about-turn and found that there was not sufficient evidence to have found that the employee had in fact committed the alleged sexual harassment. The Labour Court reasoned that the complainant was a single witness and her evidence was uncorroborated; that she might ‘subjectively’ have felt uncomfortable with the way that the official manipulated her hand when taking her fingerprints; and also questioned why she did not immediately report the first incident if this was such a shock to her. Accordingly, it found that the dismissal was substantively unfair in its totality.


The Labour Appeal Court took issue with this and unpacked the flaws in the reasoning of the Labour Court in terms of the merits of the case; and with that of the Arbitrator in respect of sanction.


It said that the Labour Court had approached the review as an appeal and in doing so, had come to the wrong conclusion in its assessment of the evidence. The court then provides a useful demonstration of the evaluation of evidence on a balance of probabilities, especially where there are cautionary rules in relation to a single witness, and the sexual nature of the incident.


Aspects that the Labour Court failed to consider properly, included:

  • The fact that the employee’s version was not put to the complainant during cross-examination. Case law has been clear that there is a duty on a party to challenge a version contrary to their own while the witness is testifying.

  • The employee admitted during his own testimony that he did make the remarks (use the words) complained of.

  • The discrepancies in the complainant’s testimony were minor and not material; whilst the credibility and reliability of the employee’s testimony were questionable.

  • There was no duty on the complainant to refuse to be assisted by the same official the second time, as she had the right to expect respectful treatment by all public officials.

  • There was no evidence or indication that the complainant had any motive to make up false allegations against the employee; nor did the fact that she did not report it after the first incident, impact negatively on the probabilities.

Whilst the arbitrator at least got the analysis of the evidence right according to the LAC, the court took issue with his determination that the sanction of dismissal was too harsh, given the employee’s 10-year service and clean disciplinary record. The LAC emphasised that a commissioner is not given the power to consider afresh what he or she would do, but to decide whether what the employer did was fair. Whilst this does not mean deferring to the employer, he must have regard to all of the circumstances of the case at hand.


Discussing the Sidumo case and a few others, the Court said that a balanced sanction is of the utmost importance, and that each case must be decided on its own merits. The arbitrator however focused on only some of the factors in favour of the employee, but failed to look at the broader context of the case.


Factors that the arbitrator failed to properly consider in this instance, included:

  • The nature of the infraction – i.e. sexual harassment, where offenders more often that not, should expect the harshest penalty.

  • The harm to the complainant as a result of these incidents.

  • The fact that the employee was appointed in public office in a position of authority, which was open to abuse.

  • The employee has expressed no acknowledgement of wrongdoing or any remorse.

  • Long service is not necessarily mitigating – it could be aggravating when the employee is expected to know the rules.

The dismissal of the employee was accordingly found to have been substantively fair in all respects.


Conclusion


A valuable judgement and a reminder that there are many nuances to disciplinary cases that initiators, chairpersons and arbitrators should be aware of. As seen here, sometimes not even the Labour Court gets it right!



© Judith Griessel

31 January 2022


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