Court upholds CCMA decision on sexual harassment

Compliments are not an open invitation, says the Labour Court.

The Labour Court has upheld the SA Institute of Chartered Accountants’ (SAICA) decision, which was previously confirmed by the Commission for Conciliation, Mediation and Arbitration (CCMA), to fire an employee who sexually harassed a female colleague.

The project manager, Thandanani Umlaw, was found guilty of sexual harassment after he made these advances on 6 October 2017.

According to the victim, she complimented Umlaw on his beard, and he responded by saying that he uses his beard to tickle people and went on to rub the beard on her face, following with a hug and kisses on her neck and face.

The victim said the incident left her feeling violated and it was uncomfortable to work with Umlaw again.

In his defence, Umlaw, who was unable to find legal representation, said that his intent was not sexual.

Judge Edwin Tlhotlhalemaje said he found it difficult to understand how one took a compliment as an invitation to kiss and hug someone.

“For demonstrating his tickling prowess, he was charged and dismissed for sexual harassment,” said Tlhotlhalemaje. “He then referred an alleged unfair dismissal dispute to the CCMA where it was confirmed.”

In order to determine whether Unlaw’s dismissal was reviewable, Tlhotlhalemaje asked, “Since when is being complimented on one’s looks an open invitation to give bear hugs, or reciprocate the compliment with a kiss, or even ask the person giving the compliment personal questions?

“The obvious answer is that it has never been, nor can it ever be,” he said.

“The most disconcerting part is that he failed at the time and even in these review proceedings to appreciate the enormity of the consequences of his reprehensible conduct. Instead, he persisted with his almost self-righteous approach”, Tlhotlhalemaje noted in this judgement, under which he also ordered that Umlaw pay the costs for the case.