A 10-day unpaid suspension and a final written warning for an employee of the Bergrivier Local Municipality in Piketberg, Western Cape, following the sexual harassment of a female colleague, did not go down well with the Western Cape Labour Court, which called it totally unacceptable.

The municipality turned to the labour court to review and overturn the slap on the wrist given to the employer – a Mr S. According to the municipality he deserved being fired – a sentiment shared by the labour court.

Following a disciplinary hearing convened in terms of the South African Local Government Bargaining Council’s Disciplinary Procedure Collective Agreement (the DPCA), Mr S was found guilty of serious allegations of sexual harassment of a fellow employee.

However, the chairperson who oversaw the proceedings under the DPCA, decided a suitable sanction is a 10-day suspension. The decision was binding on the municipality, but open to be challenged in the labour court.

The charges against Mr S related to two incidents where he transported a fellow employee, only identified as Mrs B, from Porterville to Piketberg with a council vehicle.

She complained that on the first occasion he had placed his hands on her breasts and on her private parts. According to her she told him to stop fondling her, but he simply continued doing it. 

The same happened on the second occasion, she said, but this time he also placed her hand on his private part, telling her that he was “ready” for her.

While Mr S vehemently denied the allegations, it was found to be true and it was found during his disciplinary hearing that he showed no remorse for his conduct.  

The labour court commented that it appeared that the chairperson at the disciplinary hearing seemed to appreciate the seriousness of the misconduct, he however declined to impose a sanction of dismissal.

This is because the municipality had not pertinently led evidence on its policy on sexual harassment and the breakdown of the trust relationship between employer and employee.

The chairperson went so far as to find that Mr S deserved to be dismissed and that management had let B down, yet it only suspended him for a few days.

The labour court said the chairperson clearly erred in finding, on the facts of this case, that the municipality was under an obligation to lead evidence on its sexual harassment policy and the breakdown of the trust relationship between employer and employee.

“The present case involves persistent, unwanted physical molestation of a colleague. Ms B was in a vulnerable position as she was dependent on Mr S for transport to and from the workplace,” the labour court said.

The court also noted that while it was not easy for her to testify about the events and despite robust cross-examination calling her version into question, the chairperson accepted that the sexual harassment had taken place exactly as she had described. 

The court said the 10-day suspension, coupled with a final warning induces a sense of shock.

“The sanction ruling was wholly irrational in relation to the evidence before him. It was so unreasonable that no reasonable decision-maker could have arrived at it. As such, the sanction ruling falls to be reviewed and set aside,” the court said in ordering the dismissal of Mr S.

zelda.venter@inl.co.za

Source link