The recent judgment of the Labour Court in Rustenburg Platinum Mines Limited v UASA obo Steve Pietersen is a further clear indication of the seriousness with which South African courts are viewing sexual harassment in the workplace.
However, the comments made by the Judge in the matter also raise an interesting question – is it best practice for employers to have rules in place that prohibit romantic relationships in their workplaces altogether?
In light of the sharp focus that has been brought to bear on addressing the scourge of sexual harassment in the workplace, primarily as a result of the global #MeToo movement, employers are being called upon to take all necessary steps available to them to eliminate sexual harassment in the workplace.
An employer can be held liable for damages in terms of section 60 of the Employment Equity Act, 1998 (“EEA”) if it cannot prove that it did all that was reasonably practicable to ensure that its employees would not sexually harass other employees. The Labour Appeal Court has indicated that the preferred interpretation of section 60 of the EEA is that the employer can only escape liability if it can show that it took reasonably practicable steps proactively and in advance to eliminate future harassment. Demonstrating that steps were only taken after an initial complaint, to prevent repeated harassment, therefore may not suffice.
It is in this context that the Rustenburg Platinum Mines judgment gives rise to the interesting question of whether it is necessary or appropriate for employers to dissuade employees from even attempting to forge romantic relationships at work as a “reasonably practicable” measure aimed at seeking to prevent sexual harassment from occurring in the first place.
In this matter, Steve Pietersen, a senior engineering specialist, was dismissed in 2015 after he was found guilty of sexually harassing a boiler maker, Jane Kgole, over a number of years. Ms Kgole alleged that the harassment started in 2007 when Mr Pietersen approached Kgole at a braai event. He asked her how she managed to survive on her salary. He suggested that he could live with her and help her pay her expenses. The idea was that they could then sleep together. She rebuffed these suggestions. Thereafter, Mr Pietersen asked Ms Kgole to meet him so that they could sleep together at least twice a month. She testified that she constantly told him to stop, in the hope that he would.
Ms Kgole stated that she did not complain about Mr Pietersen’s conduct because she thought the employer would not assist her and she was concerned that his life may be ruined. She was also concerned for Mr Pietersen’s wife who worked for the same employer. But she did complain to her husband and some of her colleagues. It was ultimately her husband that laid the complaint of sexual harassment on her behalf.
Mr Pietersen denied ever making the advances. He alleged that Ms Kgole held a grudge against him as a consequence of him disciplining her and that she had fabricated the whole story.
Following his dismissal, Mr Pietersen referred an unfair dismissal claim to the Commission for Conciliation, Mediation and Arbitration (“CCMA”). Although finding that Mr Pietersen had made advances of a sexual nature towards Ms Kgole, the CCMA Commissioner found that Mr Pietersen’s conduct did not constitute sexual harassment.
The Commissioner found that the comments made by Mr Pietersen to Ms Kgole at the braai in 2007 had not amounted to sexual harassment. The Commissioner stated:
“At best, they appear to depict a love proposal. Surely there can never be anything untoward for an employee to be attracted to a co-employee, irrespective of the juniority or seniority… and for such an employee to accordingly propose love towards such co-employee. The problem only arises when the unwelcomeness of such a love proposal is communicated to the proposer and the proposer nevertheless persists in his/her conduct…”
Although unsupported by the evidence before him, the Commissioner proceeded to take issue with the fact that Ms Kgole purportedly had not unambiguously said “no” to Mr Pietersen. He found that her docile conduct in response to his proposal was eminently relevant and material to Mr Pietersen’s future conduct towards her.
Having found that Mr Pietersen was not guilty of sexual harassment, the Commissioner ordered the employer to reinstate him with back pay. The employer took the award on review to the Labour Court and the award was reviewed and set aside and an order was made that Mr Pietersen’s dismissal was fair. The Labour Court was scathing of the approach adopted by the Commissioner and found that it was a misogynistic, patriarchal and insensitive approach.
Of particular interest is the Labour Court’s statements on the Commissioner’s finding that Mr Pietersen’s comments were no more than an expression of his love for Ms Kgole. The Labour Court stated: “A workplace is exactly that and should not ordinarily be confused with a ‘find me love’ sanctuary or a lonely hearts’ club for love sick employees…
There is a school of thought that holds the view that human beings can be slaves to their urges. That being so, it does not imply that employees are incapable of controlling those urges in the workplace. A workplace should be free from ‘amorous’ and testosterone filled employees looking for love and gratification at every available opportunity. There is everything wrong when employees express their affection in the workplace to each other to the point where the conduct in question is frowned upon as is crosses that fine line between innocent attraction and sexual harassment. Where such conduct creates a sexually hostile and intimidating work environment that undermines the dignity, privacy and integrity of the harassed… Item 4.4 of the 2005 Code becomes relevant… Commissioners are obliged to assess and determine the impact of the sexual conduct on the employee…”
These comments certainly suggest that employees should be discouraged from expressing any affection towards each other in the workplace. This is particularly so in the case of senior employees towards their subordinates. To the extent that the feelings of affection are not reciprocated, this conduct would inevitably have a negative impact on the working relationship and create a hostile and unpleasant working environment for the subordinate.
An outright prohibition on romantic relationships in the workplace may not be practical or realistic, but it does appear that employers should give careful consideration to including appropriate wording in their sexual harassment policies dissuading senior employees from even attempting to make any sexual advances towards subordinate employees. Moreover, managerial employees should be educated on the definition of sexual harassment and the circumstances in which sexual conduct would clearly be unwelcome.