Source Kirsten Caddy and Tricia Tsoeu, Cliffe Dekker Hofmeyr

In the unreported case of SA Metal Group (Pty) Ltd v CCMA and Others (CC50/13) handed down on 15 April 2014, the Labour Court (LC) found an arbitration award made in the absence of considering the Code of Good Practice on Handling Sexual Harassment Cases (Code) reviewable.

In this case, the employee was found to have engaged in, amongst others, inappropriate verbal banter with the complainant. The employee told the complainant that he “can’t wait for summer to see you strut your stuff” and asked her whether she was “offering to play with me?”

The Commission for Conciliation, Mediation and Arbitration (CCMA) commissioner found that these comments did not constitute sexual harassment because the comments did not contain any explicit sexual connotations. The commissioner further held that it was not sexual harassment because the complainant did not make the employee aware that the verbal banter was unwelcome.

However, the LC came to the contrary conclusion after taking cognisance of the Code (something the commissioner failed to do). Specifically, the LC found that the employee’s comments fell squarely within the definition of verbal sexual harassment contained in the Code in that it amounted to “unwelcome innuendo, suggestions and hints”.

The Code does not require verbal communication to contain ‘explicit sexual connotation’ for it to qualify as sexual harassment. In relation to the impact of the complainant’s conduct in response to the employee’s verbal banter, the LC found that “although the complainant may present as ambivalent, or even momentarily flattered by the attention, it is no excuse. The fact that the complainant showed signals of discomfort shows that the conduct is unwelcome”.

The LC stated that, despite the Code indicating that a complaint of sexual harassment should be reported ‘immediately’, reporting the incident ‘as soon as is reasonably possible in the circumstance’ will suffice. The LC emphasised the importance of taking into account the power imbalances between the employee and the complainant.

In another recent case, Simmers v Campbell Scientific Africa (C751/13), handed down on 9 May 2014, the employee asked the complainant whether she wanted “a lover tonight?” The LC held that it is necessary to distinguish between sexual attention and sexual harassment. The guidelines for making this determination are set out in item 4 of the Code.

In the Simmers case, the LC found that the employee’s conduct did not amount to sexual harassment because the employee did not persist in the behaviour after the complainant told him that his overtures were unwelcome.

These cases illustrate the importance of considering the Code in handling sexual harassment cases in the workplace. The Code should at all times be used as the principal guide in assessing the nature and gravity of the conduct alleged to constitute sexual harassment.