The Labour Court has set aside a 2024 CCMA order that had reinstated an employee who had been dismissed for sexual harassment.
Peter Hoop, who was employed by Pioneer Foods in 2001, was dismissed on March 22 2023 after a disciplinary inquiry.
On January 11 2023, Hoop, who was a production supervisor, had called the entire shift, which included a female subordinate, to issue work-related instructions.
During that gathering, there was an incident involving Hoop and the female subordinate that led to the incident being anonymously reported on the “Speak Up” reporting platform at the company.
A notice of a pending disciplinary process was issued to Hoop on February 27 2023, and the inquiry took place on March 2 2023. Hoop faced a charge that that he sexually harassed a female subordinate when “you grabbed her arm, turned her around and hit her on her buttocks without her consent”.
The chairperson of the inquiry recommended dismissal as the appropriate sanction.
Hoop referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration and in an award on May 7 2024, the commissioner ruled Hoop’s dismissal to have been procedurally fair but substantively unfair.
The commissioner ordered Hoop’s reinstatement without back-pay and substituted the disciplinary sanction with a final warning valid for no longer that 12 months from the date of the award.
The Labour Court said in its judgment on Tuesday that the CCMA had rejected Hoop’s unlikely version of events and found the woman’s version more probable.
Despite that finding, the CCMA commissioner found mitigation in the fact that the woman did not report the incident and also found the woman had poked Hoop, which caused him to react in the spur of the moment. The commissioner found that Hoop, as production supervisor, should have known better.
Ultimately, the commissioner concluded that Hoop’s conduct constituted sexual harassment, as alleged. However, the commissioner found the sanction of dismissal to be too severe.
The employer referred the CCMA award to the labour court for review.
The labour court said the commissioner had found, “correctly in the court’s view”, that the woman’s version of the incident was preferred to the improbable version offered by Hoop.
The court said the commissioner then found that Hoop had acted unintentionally and spontaneously in reaction to being poked by the woman.
“Reference was made to ‘poking’ during the disciplinary inquiry. The allegation that (Hoop) was provoked by (the woman) poking him was not put to (her) during cross-examination,” the court said.
That allegation was not put to the other eyewitness to the incident either.
“There was no evidence before the commissioner to reasonably accept that (Hoop) was thus provoked.”
The court said it seemed unlikely that the act of grabbing someone by the hand, spinning her around and slapping her on the buttocks, could be performed unintentionally.
“The finding that (Hoop) was provoked and acted instinctively was unreasonable.”
The court said the CCMA commissioner justified his interference with the sanction imposed by the employer because of Hoop’s length of service and his view that the woman had provoked Hoop by poking him.
“The commissioner’s finding does not acknowledge the fact that (the company) has a very strict anti-harassment policy, that there is a zero-tolerance attitude towards harassment in the workplace, that the incident took place in front of a number of co-workers, that the incident was regarded as shocking to all concerned and that (Hoop) persists in his stance that he did nothing wrong.”
The power disparity between Hoop and the woman, his subordinate, was also not considered, the court found.
“A perpetrator of sexual harassment who sees no wrong in his conduct and refuses to accept responsibility places himself in a position where dismissal becomes the only suitable sanction.”
It said enterprises had a right to take sensible operational decisions in the best interests of the business.
“The dismissal of a senior employee who perpetrates sexual harassment in full view of a number of subordinates and then fails to see the wrong in his conduct is an operationally sound decision.”
TimesLIVE
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