South Africa: A Reminder That Consistency Is Key For Employers When Dealing With Harassment In The Workplace

In UTU obo Nel/Transnet Port Terminals, Cape Town, an arbitrator appointed by the Transnet Bargaining Council found an employee guilty of a single instance of harassment and nevertheless awarded the reinstatement of the employee.

Background

This award was decided shortly after the new Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace came into force. While the award may be criticised by some as being too lenient or for adopting an incorrect approach, it does highlight some important considerations and warnings for both employers and employees when addressing harassment in the workplace.

The employee in this matter was employed in a senior position by the employer from 1986 until October 2021. In July 2021, the employee participated in an inappropriate conversation with his male co-workers which involved lewd comments about their female co-workers' bodies. This conversation was recorded and widely shared on a WhatsApp group.

The employee, as well as all those who participated in the conversation, with the exception of one individual, were charged with, and subsequently dismissed for, misconduct in the form of the contravention of the employer's Anti-harassment, Discrimination and Anti-bullying Policy. They had participated in inappropriate conversation where remarks were made which were humiliating, malicious, demeaning and insulting towards their female co-workers.

The employee referred an unfair dismissal dispute to the Transnet Bargaining Council where he argued that his dismissal was substantively unfair on the basis that:

• he was not aware of any disciplinary rule that he had contravened;
• his misconduct did not merit the sanction of dismissal; and
• the rule had not been applied consistently.

The commissioner was ultimately satisfied that the employee's utterances fell within the definition of harassment and malicious gossiping, and that this amounted to misconduct. However, the commissioner concluded that, because the employee was not as culpable as the other participants to the conversation because one of the other participants had not been disciplined and the rule had been applied inconsistently, the sanction of dismissal was too harsh and substantively unfair. The commissioner ordered the reinstatement of the employee subject to a final written warning being issued and subject to the employee being trained and counselled.

The new Code

In terms of the new Code, “harassment” is generally understood to be:

• unwanted conduct, which impairs dignity;
• conduct that creates a hostile or intimidating work environment for one or more employees or is calculated to, or has the effect of, inducing submission by actual or threatened adverse consequences; and
• which is related to one or more grounds in respect of which discrimination is prohibited in terms of the Employment Equity Act, 1998.

The new Code seeks to eliminate all forms of harassment in the workplace, from sexual harassment to racial, ethnic or social harassment, and to physical, verbal and psychological harassment. It includes an open list of conduct which may amount to harassment in the workplace which notably includes bullying, slandering, spreading rumours, demoting without justification, persecuting, sabotaging, ostracising, humiliating, insulting or demeaning an employee. It provides further guidance to the extent that:

• a single instance or event may be considered to be harassment; and
• whether or not conduct constitutes harassment should be assessed on an objective basis from the perspective of the employee who alleged harassment. The primary focus of the inquiry as to whether there has been harassment is therefore on the impact of the conduct on the complainant.

The lesson for employees: harassment will not be tolerated and a single instance of harassment can result in dismissal, depending on the circumstances and seriousness thereof.

There is, however, equally important guidance contained in the new Code regarding measures that employers should adopt against harassment to ensure that employees who commit serious acts of harassment are not reinstated, as occurred in UTU obo Nel/Transnet Port Terminals, Cape Town. In this regard, employers should:

• adopt a harassment policy that complies with the provisions of the new Code;
• effectively communicate the contents of the harassment policy to all employees;
• outline procedures to be followed by complainants alleging harassment;
• outline the availability of counselling, treatment, care and support programs for employees; and
• develop clear procedures to deal with harassment which should enable the resolution of problems in a gender sensitive, confidential, efficient, and effective manner.

The decision reached by the commissioner in UTU obo Nel/Transnet Port Terminals, Cape Town in finding the employee guilty of harassment in the form of utterances which amounted to lewd and vulgar comments about his female co-workers, is a clear example of a single incident of an unacceptable form of harassment.

The finding that the employee should be reinstated, appears to stray from the principles set out in the new Code. During the arbitration proceedings, the employer led the evidence of the female employees who were at the receiving end of the employee's comments. They testified that they felt humiliated as if they had been visually and verbally sexually harassed, that they felt uncomfortable in the workplace, and that their colleagues were staring at and distancing themselves from them. In particular, these employees were no longer comfortable working with the individuals who made lewd and vulgar comments about them.

As the new Code requires that allegations of harassment be considered from the point of view of the complainant or victim, an argument could be made that awarding the employee reinstatement on the basis of the inconsistent application of a rule is a very lenient outcome in the circumstances as it lacks the required consideration and sensitivity towards those affected by the harassment.

The employee chose to defend himself by alleging that:

• the conversation was not for anyone else to hear;
• had he known the conversation was wrong, he would've reported the matter;
• his children had listened to the recording and saw nothing wrong with what was said and
• that this is the way in which people in the coloured community, and men specifically, talk.

The manner in which the employee sought to defend himself as set out above, in our view, constitutes further harassment and sufficient weight should have been given to this by the commissioner when determining the appropriate sanction.

The employee also stated that women who do not dress appropriately in the workplace should be spoken to. He presented pictures of one of his females co-workers who he alleged dressed and posed provocatively.

The employer therefore found itself in the position of having the employee return to a workplace where numerous other employees had been negatively affected by his conduct, simply on the basis that a rule was not consistently applied. In a society of unacceptable levels of harassment, particularly towards women, it is increasingly important that employees account for their actions, both generally as well as in respect of allegations of harassment.

Given that the new Code provides that an employee may be found guilty and dismissed for a single incident of harassment, it is important that employers develop clear policies and procedures on harassment and ensure that awareness of the Code is promoted, and training is conducted in order to avoid employees' claims of ignorance or the inconsistent application of the rules.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.