The astonishing Labour Appeal Court decision: “Trying your luck” is sexual harassment

It is mostly advised that you must be careful of what comes out of your mouth. Words said could change your life in a split second. That’s what happened in the case of Campbell Scientific Africa (PTY) LTD v Adrian Simmers and others 2014, a Labour Appeal Court (LAC) decision in Cape Town.

Mr Simmers, a 48 year old installation manager employed by Campbell Scientific Africa, was dismissed following a disciplinary hearing for saying:

do you need a lover tonight?”

and

come to my room if you change your mind

to a 23 year old Ms Catherine Markside who was employed by Loci Environmental (Pty) Ltd, through which company Campbel was contracted as part of a consortium to work on a joint project in Botswana.

CCMA: Commission for Conciliation, Mediation and Arbitration

Mr Simmers felt aggrieved with his dismissal and referred the dispute to the CCMA. The commissioner found that Mr Simmers’s conduct constituting sexual harassment with verbal sexual advances made to Ms Markside, was unwelcome and related to the workplace. He also found that Mr Simmers had acted in an unprofessional manner in making those remarks. The sanction of dismissal was accordingly found to be procedurally and substantively fair.

Labour Court

Dissatisfied with the commissioner’s award, Mr Simmers sought its review by the Labour Court. Steenkamp J considered the words said to determine whether they constitute sexual harassment or mere sexual attention, and if the words constitute sexual harassment, whether they were sufficient enough to justify a dismissal. The court also took into consideration that the parties were not co-employees and found it relevant that they were not co-employees. The court expressed to say that when Markside made it plain clear to Simmers that his advances were not welcomed, he backed off.

Furthermore, the advance was an inappropriate sexual one, but did not cross the line to constitute sexual harassment, and the parties do not even work for the same employer.

The court held that, a fair sanction would be have been some form of corrective discipline including a written or final written warning for inappropriate conduct. Mr Simmers did behave unprofessionally, 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.

Labour Appeal Court

Campbel appealed the labour court’s decision.

This court agreed with the decision by the commissioner at the CCMA and found that the Labour Court 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 Markside, 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 Markside 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”.

In SA Broadcasting Corporation Ltd v Grogan NO and Another, Steenkamp AJ (as she was at the time) observed that sexual harassment by older men in positions of power has become scourge in the workplace.

The labour court erred in treating the conduct as simply an unreciprocated sexual advance in which Mr Simmers was only “trying his luck”. The advances made affected Markside’s dignity and integrity, which is the protection our Constitution affords. The labour court overlooked that.

The court concluded to say the arbitration award was justifiable and the appeal must be upheld.

Conclusion

Even though I am sceptical about the decision of the Labour Appeal Court’s approach in the matter, this court does, however protect the interests of young female employees in an employment environment. Sexual advances can be made by both male and female, but it can only be sexual harassment if those advances impair your dignity and integrity, according to this court.

By Avela Makunga
avela@dyason.co.za