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This week we focus on a few interesting cases. In the matter of Nkadimeng / Omega Risk Solutions (Pty) Ltd (2012) CCMA the employee was dismissed for sexually molesting two female colleagues. At the inquiry, the employee was faced with the following charge: Sexually harassing a fellow employee during the course of 2010. Your actions contributed to a sexual environment against the will of your subordinates. The CCMA found that although the dismissal was substantively fair, the charges were too vague. This resulted in a finding that the dismissal was procedurally unfair. A disciplinary charge must contain sufficient information to enable the accused employee to prepare his defence. The reference to “during the course of 2010” and failure to indicate what the act of sexual harassment was, was fatal. The company wanted to ensure confidentiality in the matter and protect the victim – although this is important, it cannot be at the expense of fair procedure.

The facts of Williams / Telkom SA (2011) CCMA, make for interesting reading. Williams had accused a colleague of rape whilst on a company training program. However, evidence presented proved (in the disciplinary inquiry and the criminal trial) that the sexual relationship was consensual. This resulted in the company initiating disciplinary action against her on the grounds of her laying a false charge against a fellow employee. The CCMA found that the dismissal was fair on these grounds.

In FAWU obo Khoza / Pioneer Foods Ltd (2009) CCMA, the perpetrator

apologised to the victim in a counselling session that was organised by the company. Subsequent to this meeting, he was charged and dismissed for the act of sexual harassment. He argued that this was unfair, as the matter had been dealt with and was therefore closed – the so called res judicata argument. The CCMA disagreed, and held that the counselling meeting was merely part of the investigation into the allegations against him. The dismissal was held to be fair.

The high prevalence of these cases illustrates that sexual harassment is a risk in the workplace. Members must ensure that policies are in place, education is initiated, and the issues that do arise are dealt with in a fair manner to all involved.

If you haven't already, take a look at our sexual harassment policy. Are you covered?

I'm happy to take your questions on this matter. Ask me

(Source: Published by UCT Labour Law Club (www.labourlawclub.co.za ) Author: Andrew Breetzke)

Regards

Charles Kinnear

"You can lose when you outscore somebody in a game. And you can win when you’re outscored.”(John Wooden)

Senior Arbitration & Litigation H.o.D.

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