By Neil Coetzer, Senior Associate, Employment Law, Benefits & Industrial Relations, Cowan-Harper Attorneys
During the middle of 2014, the case of Simmers v Campbell Scientific Africa (Pty) Ltd made the headlines for all the wrong reasons.
The Labour Court had previously found that the employee, Simmers, had not sexually harassed a female employee of another employer but was simply ‘trying his luck’.
The employer subsequently took the matter on appeal (Campbell Scientific Africa (Pty) Ltd v Simmers and Others (CA 14/2014)  ZALCCT 62) where the Labour Appeal Court handed down judgment on 23 October 2015 in which it set aside the judgment of the Labour Court.
The Labour Appeal Court found that even where the conduct was only verbal, involved a single, isolated incident and was not persisted with after the isolated incident, an employee could be found guilty of sexual harassment.
The complaint against such conduct was made by a female employee (“the complainant”) of Loci Environmental (Pty) Ltd, a company through which Campbell Scientific Africa was contracted as part of a joint project in Botswana.
The incident involved several ‘crude and inappropriate’ utterances made by Simmers, the installation manager of Campbell Scientific Africa, to the complainant during a single conversation one night after dinner.
The content of the discussion was briefly captured in an email from the complainant after she was requested to provide a ‘short declaration’ for purposes of the investigation into the allegations against Simmers:-
“One night, after we had dinner, Frederick was finalising the bill, and Adrian [Simmers] and I were standing in the parking area. 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…”
The complainant led further evidence of her personal feelings of discomfort and fear for her personal safety. This evidence was not disputed by Simmers.
The LAC, after considering the relevant provisions of the Employment Equity Act and the two Codes of Good Practice on the Handling of Sexual Harassment in the Workplace, stated that sexual harassment creates an offensive and intimidating work environment that ‘undermines the dignity, privacy and integrity of the victim and creates a barrier to substantive equality in the workplace’.
It also found that in terms of the Codes, victims of sexual harassment may include not only employees, but also clients, suppliers, contractors and other persons who have dealings with the employer.
The LAC disagreed with the Labour Court’s conclusion that the conduct did not constitute sexual harassment.
The LAC instead found that Simmers had capitalised on the complainant’s isolation in Botswana and that his conduct, even though it was neither physical nor persisted with, clearly constituted sexual harassment.
It found further that the complainant was entitled, in terms of the Constitution, to ‘engage constructively and on an equal basis in the workplace without unwarranted interference upon [her] dignity and integrity’.
The fact that the complainant and Simmers were not co-workers did not necessarily result in a situation where no disparity of power existed between them. Indeed, Simmers was an older man while the complainant was a younger woman.
The LAC accordingly found that the dismissal of Simmers was neither inappropriate nor unfair and served as an unequivocal message that employees who engaged in sexual harassment should expect to face the harshest penalties under the law.
Employers have a duty of good faith towards their employees, including a duty to provide a safe working environment.
Employers should take decisive action in circumstances where they receive complaints of sexual harassment but must always ensure that the rights of both the complainant and the person accused of such conduct are respected in the process.
For more information contact Neil Coetzer at firstname.lastname@example.org or (011) 783 8711 /(011) 048 3000
Article published with the kind courtesy of Cowan-Harper Attorneys www.cowanharper.co.za