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[2015] ZALAC 51
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Campbell Scientific Africa (Pty) Ltd v Simmers and Others (CA14/2014) [2015] ZALAC 51; (2016) 37 ILJ 116 (LAC); [2016] 1 BLLR 1 (LAC) (23 October 2015)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case no: CA 14/2014
In the matter between:
CAMPBELL SCIENTIFIC AFRICA (PTY)
LTD
Appellant
and
ADRIAN
SIMMERS
First Respondent
JOHN WILSON THEE
N.O
Second Respondent
COMMISSION FOR CONCILIATION
MEDIATION AND
ARBITRATION
Third Respondent
Heard:
3 September 2015
Delivered:
23 October 2015
Summary:
Dismissal of employee for sexual harassment and unprofessional
conduct found substantively fair
at arbitration. Labour Court on
review held that while conduct inappropriate it did not constitute
sexual harassment. Dismissal
set aside and employee reinstated with
12 month final written warning. Held on appeal: Conduct constituted
sexual harassment and
sanction of dismissal fair. Commissioner
committed no reviewable irregularity and decision fell within the
bounds of reasonableness
required. Appeal upheld with costs.
Coram: Waglay JP, Coppin JA
et
Savage AJA
JUDGMENT
SAVAGE AJA
Introduction
[1]
This
is an appeal, with the leave of the court
a
quo
,
against the judgment of the Labour Court (Steenkamp J) in which the
dismissal of the first respondent, Mr Adrian Simmers, for
sexual
harassment and unprofessional conduct was found substantively unfair
and his retrospective reinstatement ordered subject
to a final
written warning valid for 12 months.
[2]
Mr
Simmers, a 48-year-old installation manager employed by the
appellant, Campbell Scientific Africa (Pty) Ltd, was dismissed
following
a disciplinary hearing for unprofessional conduct and the
sexual harassment of 23-year-old Ms Catherine Markides, who was
employed
by Loci Environmental (Pty) Ltd, through which company the
appellant was contracted as part of a consortium to work on a joint
project in Botswana. Aggrieved with his dismissal, he referred a
dispute to the Commission for Conciliation, Mediation and Arbitration
(CCMA). A first arbitration award was set aside by the Labour Court
(Rabkin-Naicker J) on the basis of certain procedural irregularities
and the matter was remitted back to the CCMA for a hearing
de
novo
before a different commissioner.
Arbitration
[3]
The
evidence before the commissioner in the
de
novo
hearing was that Mr Simmers, his colleague Mr Frederick le Roux, also
an employee of the appellant, and Ms Markides were staying
at a lodge
near Serowe in Botswana where they were contracted to survey a site
for the installation of equipment for the Botswana
Power Corporation.
On their last night at the lodge, the three had dinner together.
While Mr Le Roux settled the bill, Mr Simmers
and Ms Markides walked
to the parking area to wait for him. Ms Markides in her evidence,
tendered via telephone from Australia,
said that while waiting for Mr
Le Roux, Mr Simmers told her he felt lonely, made advances towards
her and asked her to come to
his room, an invitation which she said
he “
reiterated
a number of times
”
to the point that she felt “
quite
uncomfortable
”.
He also asked her if she had a boyfriend, causing her to respond that
she did, that she was in contact with him and that
it was a serious
relationship. Mr Simmers then invited her to phone him in the middle
of the night if she changed her mind.
[4]
Ms
Markides said she felt threatened, that his advances to her were “
not
welcome at all”
and
she programmed Mr Le Roux’s number into her cellphone so that
he was “
one
button away from a call just in case anything happened
”.
She stated in evidence that:
‘…
It
made me feel incredibly nervous that he had treated me this way, I
felt – it was uncomfortable for me, I was not open to
suggestions, the offers that he was making at all – at all. I
just felt that it was a very inappropriate way for him to behave
towards me
.’
[5]
Ms
Markides continued that she felt “
quite
insulted”,
“
quite
shocked”
and
upset given that it was “…
just
before we went to bed and the sleeping arrangements were that Mr
Simmers’ room was quite close to mine
…”.
[6]
Following
the incident, she said that she would not agree to work with Mr
Simmers again. Ms Markides also took issue with Mr Simmers’
conduct, which she considered inappropriate and unprofessional, in
telling her that Mr Le Roux was difficult to work with, that
he was a
stubborn perfectionist who took too much time to do his job and did
not listen.
[7]
Mr
Simmers’ version differed in certain material respects from
that of Ms Markides. He said that he asked Ms Markides only
once and
half-jokingly “
Do
you need a lover tonight?
”
and that when she refused he told her that if she changed her mind,
she should come to his room and knock and that they
could then go to
town and take a few photographs. Ms Markides did not recall this
being said. She also denied that what had occurred
was no more than a
sexual invitation between consenting adults which had been meant
lightly.
[8]
Although
made after-hours, the commissioner found Mr Simmers’ conduct to
constitute sexual harassment with the verbal sexual
advances made to
Ms Markides unwelcome and related to the workplace. The commissioner
also found that Mr Simmers had acted in an
unprofessional manner in
making remarks to Ms Markides about Mr Le Roux behind his back which
“could have had the effect
of bringing the company’s name
into disrepute”.
[9]
The
commissioner concluded that –
‘
In
my opinion the entire conversation pertaining to the incident was
inappropriate considering that they hardly knew each other.
I find it
inappropriate that a stranger would approach another person and ask
whether she has a boyfriend. The complainant testified
that even
though she did not tell the Applicant to stop, she made it clear in
no uncertain terms that it was not acceptable and
that she had
blatantly refused the invitation. I therefore find that the
Applicant’s proposals to Ms Markides constituted
sexual
harassment in the form of unwanted sexual advances.’
[10]
The
sanction of dismissal was found to be fair given that the misconduct
was serious, with the mitigating factors not negating the
aggravating
circumstances and when Mr Simmers had shown no remorse and remained
adamant throughout the proceedings that his behaviour
was not
serious. It was found that his “behaviour cannot be
rehabilitated” and that any future employment relationship
between the parties was not possible. With no procedural defect, the
dismissal of Mr Simmers was found both procedurally and substantively
fair.
Labour Court
[11]
Dissatisfied
with the commissioner’s award, Mr Simmers sought its review by
the Labour Court. Steenkamp J considered the issues
for determination
to be whether the words “do you want a lover tonight” and
“come to my room if you change your
mind”, which Mr
Simmers admitted saying, constitute sexual harassment or “mere
sexual attention”? And if the
words “do you want a lover
for tonight” do constitute sexual harassment, whether these
words are sufficiently serious
to justify a dismissal? Regarding the
charge of unprofessional conduct, the issue for determination was
stated as whether Mr Simmers’
discussions with Ms Markides
regarding Mr Le Roux justified a dismissal or other punishment.
[12]
The
Court found it relevant that Mr Simmers and Ms Markides were not
co-employees, that they would probably never work together
again
since Ms Markides had gone to Australia and that “there was no
disparity of power” between them. In addition,
the conduct was
“once-off” and was found to have occurred outside of the
workplace and outside working hours.
[13]
The
commissioner’s statement was found illogical that “the
fact that the applicant had not denied that he had made the
remarks
to the complainant certainly would suggest that he was aware or
should have been aware that his remarks on the day of the
incident
would not be welcome and therefore constitute sexual harassment".
Mr Simmers’ conduct, it was stated, “…did
not
cross the line from a single incident of an unreciprocated sexual
advance to sexual harassment”:
‘
[29]
It
is true that a single incident of unwelcome sexual conduct can
constitute sexual harassment. But it is trite that such an incident
must be serious. It should constitute an impairment of the
complainant’s dignity, taking into account her circumstances
and the respective positions of the parties in the workplace. This
nearly always involves an infringement of bodily integrity such
as
touching, groping, or some other form of sexual assault; or
quid
pro quo
harassment. In this case, it is common cause that the Commissioner
dealt with a single incident. He found so. Once Markides made
it
plain to Simmers that it was not welcome, he backed off.’
[14]
The
Court continued:
‘…
Misunderstandings
are frequent in human interaction. An inappropriate comment is not
automatically sexual harassment. This was a
fundamental error made by
the Commissioner one that led directly to his conclusion that
dismissal was a fair sanction. Simmers’
comment was sexual
attention, crude and inappropriate as it may have been. It was a
single incident. It was not serious. It could
only have become sexual
harassment if he had persisted in it or if it was a serious single
transgression. Add to this the fact
that there was no workplace power
differential, the parties were not co-employees, and the incident
took place after work. The
advance was an inappropriate sexual one,
but it did not cross the line to constitute sexual harassment. It
certainly did not lead
to a hostile work environment; in fact,
Markides left for Australia shortly after the incident, and it is
unlikely that the parties
will ever work together again – they
do not even work for the same employer
.’
[15]
The
Court took issue with the commissioner’s failure to consider
the relevance of Ms Markides’ e-mails in which:
‘
She
did not say that she was afraid, nor nervous, nor threatened, nor
apprehensive. In her evidence at arbitration she could not
provide a
plausible explanation why she did not include the following
allegations, raised for the first time at arbitration, in
her
email: …that she was “incredibly nervous”;
…that she felt insulted; …[and] that she had
put Le
Roux’s cell phone number into her cell phone in case Simmers
approached her during the night
.’
[16]
The
high-water mark of her complaint was found to be that contained in
her e-mail of 11 June 2012 in which she stated that to her
Mr
Simmers’ conduct in relation to Mr Le Roux was inappropriate
and disrespectful; that she was surprised by his advances;
and that
she felt uncomfortable with his conduct “overall”. By
failing to take this evidence into account, the arbitrator
was found
to have reached a decision that no reasonable decision-maker could
have reached on the facts before him. Mr Simmers’
conduct was
found not to have amounted to sexual harassment and even if it did,
it could not justify dismissal:
‘
It
is common cause that Simmers did not touch Markides. His verbal
conduct was crude and inappropriate, but it was not a demand
for
sex. It was an unreciprocated advance. In blunt terms, he was
“trying his luck”. It was inappropriate but
it did not
justify dismissal. The Commissioner concludes, correctly and
reasonably, that this was a once-off incident. There was
no power
differential and the parties were together for only a brief sojourn.
It did not create a hostile work environment for
Markides. No
reasonable commissioner, in my view, could have found that this
incident justified dismissal as a fair sanction.’
[17]
A
fair sanction, the Court concluded, would have been some form of
corrective discipline including a written or final written warning
for inappropriate conduct. Similarly, it was found that while Mr
Simmers did behave unprofessionally in discussing Mr Le Roux’s
perceived shortcomings with Ms Markides, creating a bad impression
and leading her to consider his conduct inappropriate and surprising,
dismissal was not a fair sanction for a first offence when a form of
progressive discipline was appropriate. The decision of the
commissioner was found to fall outside of the realm of reasonableness
required with the sanction imposed unfair. Consequently,
Mr Simmers’
dismissal was held to be substantively unfair and he was
retrospectively reinstated into his employment with
final written
warning valid for 12 months.
Evaluation
[18]
Our
constitutional democracy is founded on the explicit values of human
dignity and the achievement of equality in a non-racial,
non-sexist
society under the rule of law.
[1]
Central to the transformative mission of our Constitution is the hope
that it will have us re-imagine power relations within society
so as
to achieve substantive equality, more so for those who were
disadvantaged by past unfair discrimination.
[2]
[19]
The
treatment of harassment as a form of unfair discrimination in
s6(3)
of the
Employment Equity Act 55 of 1998
recognises that such conduct
poses a barrier to the achievement of substantive equality in the
workplace.
[3]
This is echoed in the 1998 Code of Good Practice on the Handling of
Sexual Harassment Cases in the Workplace (the 1998 Code), issued
by
NEDLAC under s203(1) of the Labour Relations Act 66 of 1995 (LRA),
and the subsequent 2005 Amended Code on the Handling of Sexual
Harassment Cases in the Workplace (the Amended Code), issued by the
Minister of Labour in terms of
s54(1)(b)
of the
Employment Equity Act
55 of 1998
.
[4]
[20]
At
its core, sexual harassment is concerned with the exercise of power
and in the main reflects the power relations that exist both
in
society generally and specifically within a particular workplace.
While economic power may underlie many instances of harassment,
a
sexually hostile working environment is often “…less
about the abuse of real economic power, and more about the
perceived
societal power of men over women. This type of power abuse often is
exerted by a (typically male) co-worker and not necessarily
a
supervisor.”
[5]
[21]
By
its nature such harassment creates an offensive and very often
intimidating work environment that undermines the dignity, privacy
and integrity of the victim and creates a barrier to substantive
equality in the workplace. It is for this reason that this Court
has
characterised it as “the most heinous misconduct that plagues a
workplace”.
[6]
[22]
Both
the 1998 and the Amended Codes of Good Practice provide that victims
of sexual harassment may include not only employees, but
also
clients, suppliers, contractors and others having dealings with a
business.
[7]
In addition, both Codes record that a single act may constitute
sexual harassment.
[8]
Distinctions exist between the Codes in the definition of sexual
harassment, with the 1998 Code defining it as:
‘
(1)
…
unwanted
conduct of a sexual nature. The unwanted nature of sexual harassment
distinguishes it from behaviour that is welcome and
mutual.
(2)
Sexual attention becomes sexual
harassment if:
(a)
The behaviour is persisted in,
although a single incident of harassment can constitute
sexual
harassment; and/or
(b)
The recipient has made it clear
that the behaviour is considered offensive; and/or
(c)
The perpetrator should have
known that the behaviour is regarded as unacceptable
.”
[9]
[23]
The
definition contained in the 2005 Amended Code of sexual harassment is
that of -
‘…
unwelcome
conduct of a sexual nature that violates the rights of an employee
and constitutes a barrier to equity in the workplace,
taking into
account all of the following factors:
4.1
whether the harassment is on the
prohibited grounds of sex and/or gender and/or sexual orientation;
4.2
whether the sexual conduct was
unwelcome;
4.3
the nature and extent of the sexual
conduct; and
4.4
the impact of the sexual conduct on
the employee
.’
[10]
[24]
In
spite of it being termed the “Amended” Code, this Code
does not replace or supersede the 1998 Code, which to date
has not
been withdrawn. The result is that in terms of s203(3), both Codes
are as “relevant codes of good practice”
to guide
commissioners in the interpretation and application of the LRA.
[25]
The
commissioner, while correctly recording that in addition to the Code
of Good Practice: Dismissal, any other relevant Code of
Good Practice
was to be taken into account in his determination of the matter,
relied only on the provisions of the 1998 Code and
not the Amended
Code. Although the Labour Court found that the commissioner had
relied on the Amended Code (when in fact it was
the 1998 Code to
which the commissioner had referred), the Court then considered the
provisions of the Amended Code and not the
1998 Code. For current
purposes little turns on this discrepancy.
[26]
The
appellant was entitled to discipline Mr Simmers for misconduct which
was both related to and impacted on his employment relationship
with
the appellant.
[11]
This was so given that the misconduct occurred within the context of
a work-related social event when Mr Simmers would not have
been at
the lodge in Botswana and in the company of Ms Markides had it not
been for his employment with the appellant and it was
to the
appellant that Ms Markides complained regarding to Mr Simmers’
conduct.
[27]
There
is no dispute that Mr Simmers made advances to Ms Markides that took
the form of unwelcome and unwanted conduct of a sexual
nature. While
the Labour Court found the advances crude and an inappropriate, it
erred in finding that the advances made constituted
inappropriate
sexual attention and not harassment, were not serious and did not
impair the dignity of Ms Markides, who was not
a co-employee, with
whom there existed no disparity of power and when the two were
unlikely to work together in the future. To
the contrary, the
unwelcome and inappropriate advances were directed by Mr Simmers at a
young woman close to 25 years his junior
whose employment had placed
her alone in his company and that of Mr Le Roux in rural Botswana.
Underlying such advances, lay a
power differential that favoured Mr
Simmers due to both his age and gender. Ms Markides’ dignity
was impaired by the insecurity
caused to her by the unwelcome
advances and by her clearly expressed feelings of insult. As much was
apparent from her evidence
that she was insulted, felt
“
incredibly
nervous”
given
the proximity of the sleeping arrangements at the lodge and that she
programmed Mr Le Roux’s number onto her phone “just
in
case anything happened”.
[28]
The
commissioner did not, in my mind, fail to appreciate the distinction
between the content of the e-mails sent by Ms Markides
to the
appellant and her oral testimony in which she indicated that she was
afraid, nervous and threatened by Mr Simmers’
conduct. From her
e-mails, it is apparent that she was circumspect in her initial
report to the appellant when she stated in general
terms that she
considered Mr Simmers’ conduct unprofessional, inappropriate
and “…felt it would reflect badly
on the company
if…he…continued to behave in that manner
”
.
Thereafter on the
request of the appellant, she provided further details of the
incident and on 11 June 2012, while accepting the
appellant’s
apology for the behaviour, accepted that it was not behaviour
“
appropriately
representative of CS Africa”
but
Mr Simmers’
“
personal
misconduct”. In this e-mail, she provided some detail of the
advances made to her and also reported that Mr Simmers
had been
unprofessional in speaking to her about Mr Le Roux in an “undermining
and unnecessary”
manner.
[29]
When
on 21 June 2012 Ms Markides was informed that a formal disciplinary
process was to be instituted against Mr Simmers, she was
asked to
supply a “short declaration”. She replied in writing:
‘…
I
found Adrian’s conduct inappropriate. He constantly attempted
to influence my opinion of Frederick into condescension, saying
that
he was a perfectionist, that he was stubborn, that he took too much
time to do his job, that he didn’t listen, that
he was an
impossible person to work with. It was uncomfortable for me that he
(Adrian) would try to talk about Frederick behind
his back to me.
One
night, after we had dinner, Frederick was finalising the bill, and
Adrian and I were standing in the parking area. I said that
I was not
tired, Adrian suggested that we do something, to which I said
(reluctantly) that we should speak to Frederick. He refused
saying
that he did not want Frederick to know or be involved. I then said
that I was just going to go to bed. He said that it was
difficult to
be alone, that he was lonely and asked if I wanted to go for a walk
(alone with him) or go to his room with him. I
refused, he then asked
about my boyfriend (whom I had mentioned …) and asked if I was
in contact with him, if it was a serious
relationship. I said yes, I
speak to him every day…Adrian then asked again if I was sure I
didn’t want to spend some
time with him, to which I refused
again, and said I was just going to go to bed. He then reiterated his
offer, saying that if I
changed my mind I could just go to his room
during the night. I again said that I was going to bed….Overall
I felt uncomfortable
with Adrian’s conduct, and was surprised
by his advances to me, and his disrespectful behaviour towards
Frederick.’
[30]
In
her oral evidence, Ms Markides explained that her e-mail –
‘…
was
quite brief because that’s what I was asked for, it was just a
brief statement of what had happened, I wasn’t asked
to explain
exactly how I felt that evening…I didn’t go into detail
of emotional wellbeing or anything.’
When
pressed further as to why she had not done so, she answered:
‘
Because
as far as I took it, I wasn’t asked to do that.’
[31]
By
the nature of oral evidence, it was reasonable to accept that Ms
Markides would provide further details, including of her emotional
response to the incident, when testifying about it and that her
evidence would flesh out the content of her e-mailed statement.
It is
relevant that no challenge was put to Ms Markides in
cross-examination that her evidence as to her reaction to the
advances
made was untrue, nor that either her credibility or the
reliability of her evidence was tainted by her failure to record the
detail
of such reaction in her e-mails. In not rejecting Ms Markides’
evidence and in placing reliance on her oral evidence concerning
the
impact of Mr Simmers’ conduct, the commissioner did not commit
a reviewable irregularity. It follows that the Court
a
quo
’s
conclusion that the commissioner, in failing to take the content of
the e-mail evidence into account, reached a decision
that no
reasonable decision-maker could have reached on the facts before him
is consequently, in my mind, strained.
[32]
It is
trite that an arbitration award will be set aside on review where the
result is unreasonable insofar as it is not one that
a reasonable
arbitrator could reach on all the material that was before the
arbitrator.
[12]
From the record, it
is apparent that distinctions existed in the versions of Ms Markides
and Mr Simmers regarding the incident which
the commissioner in his
award did not resolve. While there may have been benefit in finding
on these distinctions, I agree with
Mr
Freund
SC for the appellant that these were not sufficiently stark to place
mutually exclusive versions before the commissioner and that
the
decision reached by the commissioner was one that a reasonable
decision-maker could have reached on the material before him.
Mr
Simmers’ conduct constituted sexual harassment, as defined in
both Codes: it was unwelcome and unwanted; it was offensive;
it
intruded upon Ms Markides’ dignity and integrity; and is caused
her to feel both insulted and concerned for her personal
safety.
[33]
In
SA
Broadcasting Corporation Ltd v Grogan NO and Another,
[13]
Steenkamp AJ (as he then was) observed that sexual harassment by
older men in positions of power has become a scourge in the
workplace.
In
Gaga
v Anglo Platinum Ltd and Others,
[14]
this Court noted similarly that the rule against sexual harassment
targets, amongst other things, reprehensible expressions of
misplaced
authority by superiors towards their subordinates.
[15]
The fact that Mr Simmers did not hold an employment position senior
to that of Ms Markides or that they were not co-employees did
not
have the result that no disparity in power existed between the two.
His conduct was as reprehensible as it would have been
had it been
metered out by a senior employee towards his junior in that it was
founded on the pervasive power differential that
exists in our
society between men and women and, in the circumstances of this case,
between older men and younger women. Far from
not being serious Mr
Simmers capitalised on Ms Markides’ isolation in Botswana to
make the unwelcome advances that he did.
The fact that his conduct
was not physical, that it occurred during the course of one incident
and was not persisted with thereafter,
did not negate the fact that
it constituted sexual harassment and in this regard the Labour Court
erred in treating the conduct
as simply an unreciprocated sexual
advance in which Mr Simmers was only “trying his luck”.
In its approach the Court
overlooked that in electing to make the
unwelcome sexual advances that he did, Mr Simmers’ conduct
violated Ms Markides’
right to enjoy substantive equality in
the workplace. It caused her to be singled out opportunistically by
Mr Simmers to face his
unwelcome sexual advances in circumstances in
which she was entitled to expect and rely on the fact that within the
context of
her work this would not occur. In treating the conduct as
sexual harassment, Ms Markides, and other women such as her, are
assured
of their entitlement to engage constructively and on an equal
basis in the workplace without unwarranted interference upon their
dignity and integrity. This is the protection which our Constitution
affords.
[34]
Turning
to the issue of sanction, the commissioner found the dismissal of Mr
Simmers to be fair on the basis of the seriousness
of the misconduct,
the lack of remorse shown by Mr Simmers, the conclusion that there
was little room for rehabilitation
and
that a future employment relationship was not possible. In doing so
he had regard to whether there existed factors in favour
of the
application of progressive discipline rather than dismissal. In
Sidumo
and Another v
Rustenburg Platinum Mines Ltd and Others
(
Sidumo
),
[16]
it
was emphasised that –
‘
In
terms of the LRA, a commissioner has to determine whether a dismissal
is fair or not. A commissioner is not given the power to
consider
afresh what he or she would do, but simply to decide whether what the
employer did was fair. In arriving at a decision
a commissioner is
not required to defer to the decision of the employer. What is
required is that he or she must consider all relevant
circumstances.’
[17]
[35]
The
commissioner had regard to all relevant circumstances in arriving at
a conclusion that the dismissal of Mr Simmers was fair.
It follows
that in the manner of his approach to the issue of sanction, the
commissioner properly applied his mind to the appropriateness
of the
sanction in the manner required in
Sidumo
and
committed no reviewable irregularity in doing so.
[18]
The result was neither inappropriate nor unfair. Rather, the sanction
imposed serves to send out an unequivocal message that employees
who
perpetrate sexual harassment do so at their peril and should more
often than not expect to face the harshest penalty.
[19]
[36]
It
follows that the arbitration award was justifiable in relation to the
reasons given for it and did not fall outside of the range
of
decisions which a reasonable decision-maker could have made on the
material before him. For these reasons, the appeal must be
upheld.
There is no reason in law or fairness as to why costs should not
follow the result and I did not understand counsel for
either party
to contend differently.
Order
[37]
In
the result, the following order is made:
1.
The appeal is upheld.
2.
The order of the Court
a quo
is set aside and replaced with
the following order:
‘
(1) The
review application is dismissed.
(2) There is no order as to costs.’
3.
The first respondent is to pay the costs of the appeal.
________________
Savage
AJA
I
agree
________________
Waglay
JP
I agree
________________
Coppin
JA
APPEARANCES
:
FOR APPELLANT:
Mr A Freund SC
Instructed by Willem Jacobs &
Associates
FOR FIRST RESPONDENT:
Mr L Ackermann
Instructed by Legal
Aid Clinic, University of Stellenbosch
[1]
Section
1(a) to (c) of the Constitution of the Republic of South Africa.
[2]
South
African Police Service v Solidarity obo Barnard
2014 (6) SA 123
(CC);
[2014] 11 BLLR 1025
(CC);
2014 (10) BCLR 1195
(CC); (2014) 35 ILJ 2981 (CC) at para 29.
[3]
Section
6(3) reads: ‘H
arassment
of an employee is a form of unfair discrimination which is
prohibited on any one, or a combination of grounds of unfair
discrimination listed in subsection (1)
’.
Section 6(1) has expanded upon the grounds of unfair discrimination
provided in s 9(3) of the Constitution to include
family
responsibility, HIV status and political opinion.
[4]
GN
1367 of 1998 issued by NEDLAC in terms of s 203 of the LRA; and GN
1357 of 2005 issued by the Minister of Labour in terms of
s 54(1)(b)
of the EEA (4 August 2005). See para 1 of the 1998 Code; para 4 of
the Amended Code.
[5]
Basson
A “Sexual Harassment in the Workplace: An Overview of
Developments” in
Stell
LR
2007 3 425-450 at 425 quoting Garbers 2002
SA
Merc LJ
37
n 5.
[6]
Motsamai
v Everite Building Products (Pty) Ltd
[2011] 2 BLLR 144
(LAC) at para 20. See too
Department
of Labour v General Public Service Sectoral Bargaining Council and
Others
(2010) 31 ILJ 1313 (LAC) at para 37.
[7]
Para
2.1 of 1998 Code.
[8]
Para
3(2)(a) of 1998 Code; See too
J
v M Ltd
(1989) 10 ILJ 755 (IC).
[9]
At
para 3.
[10]
At
para 4.
[11]
See
Hoechst
(
Pty
)
Ltd
v CWIU
(1993)
14
ILJ
1449
(LAC);
Saaiman
and Another v De Beers Consolidated Mines
(
Finsch
Mine
)
(1995) 16
ILJ
1551
(IC).
[12]
Herholdt
v Nedbank
Ltd
2013
(6) SA 224
(SCA);
[2013] 11 BLLR 1074
(SCA); (2013) 34 ILJ 2795
(SCA) at para 25. See too
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others (Gold
Fields
)
(2014) 35 ILJ 943 (LAC).
[13]
(2006)
27 ILJ 1519 (LC) at 1532A.
[14]
[2012]
3 BLLR 285 (LAC).
[15]
At
para 41.
[16]
[2007]
12 BLLR 1097
(CC);
2008 (2) SA 24
(CC); (2007) 28 ILJ 2405 (CC);
2008 (2) BCLR 158 (CC).
[17]
At
para 79.
[18]
See
too para 117.
[19]
Gaga
v Anglo Platinum Ltd and Others
at
para 47.