LANGUAGE alert! Sensitive readers should turn the page at this point, given a pithy exchange to be quoted from a labour court matter. The case dealt with workplace sexual harassment and an employee who was sacked because of his behaviour — and his language.
Morgan Masemola, who worked for the Southern Sun hotel group, was dismissed by the company after being found guilty of sexual harassment in the workplace. He then referred the matter to the CCMA, where his dismissal was upheld as both procedurally and substantively fair. Finally Masemola turned to the labour court, but a decision delivered last week has given him no joy there either.
The person whom Masemola harassed is referred to as D, a woman working for a subcontractor of the hotel group. She had nude pictures of herself on her cellphone and these were taken off her phone while she was at work. Masemola had also obtained nude pictures of D’s cousin K.
D discovered that Masemola had the pictures and asked him, via WhatsApp, to delete them. Masemola refused, saying: “You [do not] believe the iron is hot.” D shot back: “Fuck you.” In a reference to D and her cousin, Masemola then responded: “You both gonna give me sex @ the same tym oh else to Facebook on Saturday.”
After this exchange Masemola kept the pictures on his phone and removed them only after the police were brought into the matter. In the court’s view he had attempted to extort sexual favours by threatening to post the photographs on Facebook.
Masemola conceded that he knew the company policy on sexual harassment — sexual harassment by any employee of another person will not be tolerated and will be subject to serious disciplinary action — but he was not contrite.
He put up two arguments to show why he should not be disciplined or fired. First, he said, as D swore at him his subsequent conduct was justified. In fact she had harassed him, he claimed. Second, the conversation between them did not take place at work or during work hours.
Of the first defence the labour court commented that feeling provoked (as here by D’s swearing) “can never serve to justify sexual harassment”.
But employers should pay close attention to how the second argument went down with the arbitrator and with the court. The arbitrator rejected Masemola’s “outside work” defence “since the pictures were taken off D’s phone while she was at work”. In addition, the two worked in the same work area even though she was employed by a subcontractor.
D said she was offended by Masemola’s threat and couldn’t even look at him at work afterwards. She felt he had infringed her dignity. Together these factors led the arbitrator to conclude the man’s conduct had an impact on the work relationship even though the conversation did not take place at work or during work hours.
And here’s the court’s crucial finding: “The employer owes a duty towards his or her employees as well as clients, suppliers, contractors and others who have dealings with the employer ... to protect them from sexual harassment. This duty exists even if such sexual harassment takes place outside the work premises and formal working hours as such conduct impacts on the working environment.”
In this case the duty owed by the employer was expressed by the disciplinary action taken against the employee and by his subsequent dismissal.
The court found Masemola’s behaviour ticked all the boxes in the official codes on sexual harassment. Among others it was unwelcome and unwanted, offensive, intruded on her dignity and integrity and caused her to feel insulted as well as concerned about her safety.
An additional factor that counted heavily against Masemola was his lack of remorse, said the court. This, with the seriousness of the harassment, meant dismissal was indeed the appropriate sanction.