Sexual Harassment – Who Enforces the Rules?
South African law treats sexual harassment as a serious form of misconduct that infringes upon a person’s dignity and other fundamental rights.
The court went on to consider the issue of the inconsistent application of discipline. It stated that while the “parity principle” requires employees to be measured by the same standards, this is by no means decisive of the outcome on the fairness of a dismissal. The fact that another employee committed a similar transgression in the past but was not disciplined does not give an employee licence to commit serious forms of misconduct with impunity.
Makubalo was a senior employee in a position of authority. This, coupled with the seriousness of the allegations of sexual assault, required the employer to act decisively and apply the appropriate disciplinary mechanisms. It would have been patently wrong for the employer not to discipline such misconduct on the basis that it had previously failed to do so, especially considering the nature of the misconduct and the workplace within which it was committed. The LAC accordingly found that the arbitrator had reached a decision that a reasonable decision-maker in the circumstances could have reached and that the Labour Court had erred in finding otherwise. Accordingly, the decision of the Labour Court was set aside and replaced with an order dismissing the employee’s application to review the arbitration award. Employers should continue to act swiftly and appropriately when faced with sexual harassment allegations and should pursue disciplinary proceedings even if the alleged perpetrator and victim have purportedly settled the matter. The overriding consideration is acceptable standards of behaviour in the workplace and for the employer to ensure that it maintains a working environment that is free from all forms of harassment. Insofar as the issue of inconsistent application of discipline is concerned, this decision seems to suggest that there may be instances where this is justifiable and that this is but one factor to take into account when considering the overall fairness of the decision to dismiss. The application of the so-called “parity principle” is not a free licence to employees to commit acts of misconduct or to encourage unacceptable behaviour. A defence of the inconsistent application of discipline must be properly made for it to succeed.
Nils Braatvedt is a candidate attorney in the employment department.
cell: +27 82 788 0307
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