Sexual harassment promotes a culture of gender-based violence, says ConCourt

A recent judgment highlights power relations in the workplace.

The Constitutional Court has sent a strong message that employees who perpetrate sexual harassment in the workplace can expect to face the harshest penalty, following a case concerning a dismissal dispute and an award of compensation in respect of an unfair dismissal.

This was through a recent judgment handed down to Dr McGregor, who was dismissed following an internal disciplinary inquiry that found him guilty of four charges of sexual harassment involving a newly qualified medical practitioner, 30 years Dr McGregor’s junior, who was completing an internship under his supervision.

McGregor referred an unfair dismissal dispute to the Public Health and Social Development Sectoral Bargaining Council, where an arbitrator confirmed that McGregor was guilty of three of the four charges of sexual misconduct lodged against him. However, the arbitrator found that the dismissal was procedurally and substantively unfair, and awarded McGregor compensation equivalent to six months’ remuneration.

McGregor then appealed the decision, initially through the Labour Court and subsequently to the Labour Appeal Court, on the grounds that his conduct was not sexual harassment and that he should not have been dismissed. Both courts found the dismissal substantively fair but did not change the compensation received.

McGregor took the matter to the Constitutional Court, which in a unanimous judgment pronounced on whether the Labour Court and Labour Appeal Court erred in not reviewing the compensation; whether it could interfere with the award of compensation; and whether the award of six months’ compensation was appropriate in the circumstances.

The Constitutional Court noted the importance of protecting employees from unfair dismissals and upholding the constitutional right to fair labour practices, and emphasised that compensation in respect of unfair dismissals was always discretionary and never guaranteed.

Finding that it was competent to interfere with the award of compensation, the Constitutional Court noted that it was materially relevant that the dismissal was only procedurally unfair and McGregor was guilty of three charges of serious sexual misconduct.

Importantly, the Constitutional Court found that the appropriateness of compensation must always be understood within the context of the dismissal, in this case, sexual harassment. This is important because the Constitution not only seeks to protect employees’ rights to fair labour practices. It envisages a constitutional democracy founded on the explicit values of human dignity, integrity and the achievement of equality in a non-sexist society.

The court emphasised that sexual harassment strips away at the core of a person’s dignity and is the antithesis of substantive equality in the workplace. The Court also recognised that sexual harassment promotes a culture of gender-based violence and reflects insidious power relations that prevail across South African society.

Thus, the court found that this case called for an unequivocal message to be sent, which is that employees who perpetrate sexual harassment in the workplace do so at their peril, and reduced the award of compensation to an equivalent of two months’ remuneration.