Claiming ignorance never defence for sexual harassment

A simple sexual harassment policy is essential and educating employees about what it says goes a long way to a zero-tolerance approach towards sexual harassment.

The case of Umlaw/SA Institute of Chartered Accountants (2018) 27 CCMA 8.25.2 gives some further clarity.

A project manager was dismissed after sexually harassing a female co-worker. It was alleged he had kissed, fondled and hugged a colleague in a lift.

The employee admitted his conduct was inappropriate but claimed he had not realised at the time that his actions were not wanted.

The female employee testified that she was shocked by the incident and had required medical treatment as the encounter had

The employee admitted his conduct was inappropriate but claimed he had not realised at the time that his actions were not wanted

adversely affected her work.

After the male employee was dismissed, he referred an unfair dismissal dispute to the CCMA.

The commissioner noted that the employer had a sexual harassment policy that condemned such conduct as being in “strict contravention of the culture and values of the organisation”.

During the arbitration there were several disputes of fact about what had occurred during the incident. However, the common cause facts were enough to prove the project manager had sexually harassed his female colleague, which was also supported by her immediate complaint to senior management.

The commissioner rejected the employee’s claim that the disciplinary hearing was unfair because the presiding officer had allowed both parties to be legally represented.

In addition, the commissioner held that the employee had suffered no prejudice from this, apart from having incurred legal fees.

It was correct that he had been found guilty of sexual harassment, for which dismissal was indeed warranted.

The application was dismissed.