While South Africa has made some strides in addressing sexual harassment in the workplace, several recent cases have highlighted just how much further there still is to go.
On Tuesday TimesLIVE reported how the labour court has set aside a 2024 CCMA order that had reinstated an employee who was dismissed for sexual harassment. Peter Hoop, a production supervisor at Pioneer Foods, was axed in March 2023 after a disciplinary inquiry. He had hit a female subordinate on the buttocks without her consent. The act was witnessed by several other employees.
Hoop claimed unfair dismissal and took his case to the CCMA, which agreed with him and ordered that he be reinstated with a final warning valid for 12 months. It was an appalling ruling that found Hoop had acted “unintentionally and spontaneously”. It allowed him to escape any consequence for his actions, other than receiving no pay for the 13 months during which he was unemployed.
The company challenged the finding and the labour court thankfully saw reason, finding that “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 also found that enterprises have a right to take sensible operational decisions in the best interests of the business and that the dismissal of a senior employee who perpetrates sexual harassment in full view of a number of subordinates and fails to see the wrong in his conduct is an operationally sound decision. So Hoop is without a job once again.
Many of these cases are typically still determined in a nuanced way. They should not be. Whether the act was ‘spontaneous’ or ‘consensual’ or ‘unintentional’ should play no part in mitigating circumstances
Whew, justice restored on that matter — but the case is a good example of how sexual harassment can be interpreted in vastly varied ways by different organs of society. And this is not a good thing because it allows those with a chauvinistic slant and dollop of misogyny to subvert reasonable processes that support a zero-tolerance approach to harassment in the workplace.
The controversial ruling earlier this month by the Judicial Conduct Tribunal with regards to Eastern Cape judge president Selby Mbenenge is another case in point. The “emoji judge”, as he has become known, escaped a finding of gross misconduct and sexual harassment relating to a sordid flirtation with a court clerk, with the tribunal finding the sexual messages between the two were “consensual”. But what it failed to address was the power imbalance between the two. He is one of the most senior judges in the country. She is a clerk. Many would argue that consensual or not, Mbenenge’s behaviour was blatantly unethical and inappropriate, and amounted to gross misconduct.
While the two cases are different on some levels, they both speak to power dynamics in the workplace, which play a massive role in cases of sexual harassment yet are often overlooked or underplayed. Many of these cases are typically still determined in a nuanced way. They should not be. Whether the act was “spontaneous” or “consensual” or “unintentional” should play no part in mitigating circumstances.
Pioneer Foods is to be applauded, both for having a zero-tolerance sexual harassment policy and for fighting back against the bogus CCMA ruling. All organisations, big or small, should act in the same manner, with strict policies that close any potential loopholes or chances for misunderstandings.
Sexual harassment is just one example of how women in South Africa continue to be abused, violated, downtrodden and mistreated on a daily basis. It is a pervasive scourge and companies must safeguard themselves against it, both for the obvious ethical reasons as well as the future sustainability of the organisation.
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