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[2015] ZALCCT 62
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Campbell Scientific Africa (Pty) Ltd v Simmers and Others (CA 14/2014) [2015] ZALCCT 62 (23 October 2015)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Case no: CA
14/2014
DATE: 23 OCTOBER
2015
Reportable
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.