The 2005 Amended Code of sexual harassment refers to:
“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 all of the following factors:
4.1 whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation;
4.2 whether the sexual conduct was unwelcome;
4.3 the nature and extent of the sexual conduct and
4.4, the impact of the sexual conduct on the employee”.
But what if an allegation of sexual harassment is false? In such circumstances, is an employer entitled to take disciplinary action against the apparent wrongful accuser?
In a Labour Court judgment in the case of NUM obo Salaminah v the CCMA & 2 others (Case number JR1416/19), the employee had been found guilty and dismissed for having “falsely and/or maliciously accused (her manager) of sexual harassment” during a disciplinary hearing she did not participate in.
At the Commission for Conciliation, Mediation and Arbitration (CCMA) hearing, her dismissal was held to have been procedurally and substantively fair. She took this finding on review to the Labour Court.
The background to this case was that the employee had been charged with three acts of alleged misconduct. It was, however, the third allegation that stood out. It was namely “failing to comply with the (employer’s) conditions of service, procedures and directives in that on February 24, 2014 (you) had falsely and/or maliciously accused (her manager) of sexual harassment”.
Her version was that: “On February 24, 2014 (she) went to see (her manager) about her request for a car allowance that had not been finalised. She alleges that at that meeting he had told her that if she slept with him, he would grant the car allowance. (Her manager) denies such discussion. The following day she lodged a grievance in that regard demanding a written apology. The first grievance hearing found the complaint unproved.”
The employer’s first witness testified that “some time before the incident of February 24, 2014 the applicant had been speaking to him and had told him that if (her manager) did not give her a car allowance, she would blackmail him by raising a sexual harassment grievance. At the time, he thought she was only joking and had thought nothing of it until she lodged her grievance against (her manager).
(Her manager) gave evidence about the events of February 24, 2014 and his demand that the matter be further investigated thereafter.”
It was submitted that the employer “took allegations of sexual harassment very seriously and once it had been found that the allegations were without proof, it was harmful to an ongoing employment relationship.
Essentially, the applicant was found to have falsely laid a complaint of sexual harassment. Such conduct is detrimental to any ongoing employment relationship.”
For various reasons highlighted in the judgment, the Labour Court upheld the dismissal of the employee on grounds that she had falsely and maliciously accused the manager of sexual harassment.
While there were various allegations of procedural unfairness, none of them were held to have been so serious as to have prejudiced the employee.
While employers are duty bound to investigate and address allegations of sexual harassment robustly, and indeed any form of harassment, it is equally arguable that false and malicious allegations of sexual harassment warrant the same thorough investigation.
It is precisely for this reason that employers should sensitise all employees on the nature and implications of sexual harassment to ensure that cases of this nature are kept to a minimum.
Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates.
Call 0861 115 37, email [email protected] or visit www.tonyhealy.co.za