If you are thinking about “trying your luck” with a work colleague, think twice – that moment of indiscretion may cost you your job.

This is what happened to a Cape Town business manager who made advances towards a work colleague from another company during a project in Botswana.

The Labour Appeal Court decision in this case, Campbell Scientific Africa (Pty) Ltd v Adrian Simmers and Others(unreported judgment CA 14/2014, 23 October 2015), recently provided some guidance on navigating the fine line between “sexual attention” and “sexual harassment”.

The facts

In 2012, Adrian Simmers, 48, who worked for Campbell Scientific Africa (Pty) Ltd, and Catherine Markides, 23, who worked for Loci Environmental (Pty) Ltd, were on a work trip in Botswana relating to a joint project their companies were working on. On the last night of their trip, Mr Simmers, Ms Markides and Mr Simmers’ colleague, Mr Le Roux, had dinner together and, while Mr Le Roux was settling the bill, Mr Simmers and Ms Markides had an unfortunate exchange that eventually culminated in the Labour Appeal Court’s decision last month.

According to Ms Markides, Mr Simmers told her that he felt lonely; he made advances towards her and asked her to come to his room, which request she rebuffed. He asked her if she had a boyfriend, which she confirmed. Mr Simmers then asked Ms Markides to phone him in the middle of the night if she changed her mind.

According to Mr Simmers, he asked Ms Markides once and half-jokingly, “do you want a lover tonight?” and, after Ms Markides rebuffed the request, he said to her: “Come to my room if you change your mind”. This was a once-off incident and Mr Simmers did not persist with his conduct after she rebuffed him.

When Mr Simmers’ employer learned of the incident, it began disciplinary proceedings and Mr Simmers was subsequently dismissed for sexual harassment.

Mr Simmers approached the Commission for Conciliation, Mediation and Arbitration (“CCMA”) for relief; however, the CCMA found that his dismissal was fair.

The Cape Town Labour Court decision

Aggrieved by the CCMA award, Mr Simmers approached the Labour Court on review. The court had to determine whether the words “do you want a lover tonight?” and “come to my room”, which Mr Simmers admitted saying, constituted sexual harassment and, if so, whether these utterances were sufficiently serious to warrant his dismissal. In coming to the conclusion that Mr Simmers’ dismissal was unfair, and in reinstating Mr Simmers and replacing his dismissal with a final written warning valid for 12 months for inappropriate conduct, the Labour Court had regard to the following:

  • Mr Simmers and Ms Markides were not co-workers and they would probably not work together again because Ms Markides had emigrated to Australia, and there was no disparity of power between them.
  • Mr Simmers’ conduct related to a once-off incident and it occurred after hours and outside the workplace.
  • Mr Simmers’ conduct “did not cross the line from a single incident of an unreciprocated sexual advance to sexual harassment”. Once Ms Markides made it plain to Mr Simmers that his conduct was not welcome, he backed off.
  • a single incident of unwelcome sexual conduct can constitute sexual harassment, but such an incident must be serious. It should constitute an impairment of the complainant’s dignity, taking into account his or her circumstances and the respective positions of the parties in the workplace. This nearly always involves an infringement of bodily integrity, such as touching, groping or some other form of sexual assault, or quid pro quo harassment.
  • misunderstandings are frequent in human interaction and an inappropriate comment does not automatically constitute sexual harassment.
  • Mr Simmers’ comments, crude and inappropriate as they may have been, were not a demand for sex and they could only have become sexual harassment if he persisted in them or if they constituted a serious single transgression, which they did not.
  • the comments amounted to “sexual attention” and, in blunt terms, Mr Simmers was “trying his luck”.

On appeal to the Labour Appeal Court

Mr Simmers’ employer took the matter on appeal to the Labour Appeal Court and, in a unanimous judgment, three judges agreed with the CCMA commissioner that Mr Simmers’ dismissal for sexual harassment was fair. The Labour Appeal Court noted that harassment is a form of unfair discrimination in terms of the Employment Equity Act 55 of 1998. The court also had regard to the definition of “sexual harassment” in the applicable Codes of Good Practice, namely:

  • the Code of Good Practice on the Handling of Sexual Harassment Cases under the Labour Relations Act 66 of 1995 (“LRA Code of Good Practice”), in terms of which sexual harassment is defined as unwanted conduct of a sexual nature, which is distinguished from behaviour that is welcome and mutual. Furthermore, sexual attention becomes sexual harassment if (a) the behaviour is persisted in, although a single incident of harassment can constitute sexual harassment; and/or (b) the recipient has made it clear that the behaviour is considered offensive; and/or (c) the perpetrator should have known that the behaviour is regarded as unacceptable.
  • the Code of Good Practice on the Handling of Sexual Harassment in the Workplace under the Employment Equity Act (“EEA Code of Good Practice”), in terms of which sexual harassment is defined as unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace, taking into account (a) whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation; (b) whether the sexual conduct is unwelcome; (c) the nature and extent of the sexual conduct; and (d) the impact of the sexual conduct on the employee.

The Labour Appeal Court reasoned as follows:

  • at its core, sexual harassment reflects the power relations that exist both in society generally and specifically within a particular workplace. While economic power may underlie many instances of harassment, a sexually hostile working environment is often less about the abuse of real economic power, and more about the perceived societal power of men over women. This type of power abuse is often exerted by a male co-worker and not necessarily a supervisor. By its nature, such harassment creates an offensive and often intimidating work environment that undermines the dignity, privacy and integrity of the victim and creates a barrier to substantive equality in the workplace. It is for this reason that the Labour Appeal Court has characterised it as the most heinous misconduct that plagues a workplace.
  • both the LRA and EEA Codes of Good Practice record that a single act may constitute sexual harassment.
  • Mr Simmers’ unwelcome and inappropriate advances were directed at Ms Markides, a young woman close to 25 years his junior, whose employment had placed her alone in his company in a rural area. Underlying such advances lay a power differential that favoured Mr Simmers due to his age and gender. Ms Markides’ dignity was impaired by the insecurity caused to her by the unwelcome advances and by her clearly expressed feelings of insult.
  • the conduct constituted sexual harassment as defined in the LRA and EEA Codes of Good Practice because it was unwelcome and unwanted; it was offensive; it intruded upon Ms Markides’ dignity and integrity; and caused her to feel both insulted and concerned for her personal safety.
  • sexual harassment by older men in positions of power has become a scourge in the workplace. The rule against sexual harassment targets, among other things, reprehensible expressions of misplaced authority by superiors towards their subordinates. Sexual harassment is founded on the pervasive power differential that exists in our society between men and women and between older men and younger women. The fact that the conduct was not physical, that it occurred during the course of one incident and was not persisted with thereafter, did not negate the fact that it constituted sexual harassment and this was not a case of Mr Simmers merely “trying his luck”. Mr Simmers opportunistically singled out Ms Markides to face his unwelcome sexual advances in circumstances in which she was entitled to expect and rely on the fact that within the context of her work this would not occur. In treating this conduct as sexual harassment, Ms Markides and others like her are assured of their entitlement to engage constructively and on an equal basis in the workplace without unwarranted interference upon their dignity and integrity.

The Labour Appeal Court also took into account that Ms Markides felt uncomfortable, insulted and concerned about her personal safety. In upholding Mr Simmers’ dismissal, the Labour Appeal Court held that the sanction sent out an unequivocal message that employees who perpetrate sexual harassment do so at their peril and should expect to face the harshest penalty.

What can we learn from the judgment?

The line between sexual attention and sexual harassment is an extremely fine one. Additionally:

  • a perpetrator does not have to be a co-worker for sexual harassment to take place.
  • sexual harassment does not have to take place during working hours, at the workplace or in South Africa.
  • there does not have to be a continuing employment relationship or continuing proximity at the workplace between the perpetrator and the victim after the offending conduct in order for a claim of sexual harassment to be actionable.
  • a single incident that is not persisted with, and even if the perpetrator backs off after being rebuffed, could constitute sexual harassment.
  • the constitutional paradigm may be relevant in cases of sexual harassment; for example, the rights to dignity, privacy and equality.
  • the societal context may also be relevant in cases of sexual harassment; for example, power relations in society and in the workplace, such as economic power and societal power of men over women, age and gender.
  • the power relations in the workplace may also be relevant in cases of sexual harassment; for example, expressions of misplaced authority by superiors towards subordinates.

The Labour Appeal Court did not mince its words in reiterating that sexual harassment is the most heinous misconduct that plagues a workplace. Men and women who “try their luck” in the workplace do so at their own peril and, depending on the circumstances, risk facing allegations of sexual harassment, as well as the security of their employment.