Fired official sent porn, asked employee on dates

DENEL Land Systems was correct in firing one of its managers for the sexual harassment of one of the woman employees working in his department, the Labour Court has said.

It turned down an application by the former senior officer, only identified as Mr N, to have the ruling made by an arbitrator in this regard reviewed and set aside.

The court confirmed the ruling made on arbitration, where it was found that the dismissal was both procedurally and substantively fair.

A junior employee who worked in Mr N’s department claimed that he had on multiple occasions asked her on dates, which she politely rebuffed.

She also claimed that he gave her looks that made her uncomfortable and commented about her physical appearance.

The last straw, she said, was when Mr N sent pornographic material to her. According to her, she told him in no uncertain terms that she did not appreciate the offensive images sent to her.

Mr N apologised and claimed that the pornographic material was meant for a friend of his and not for her.

When all of this reached the ears of management, Mr N was charged with allegations of sexual harassment.

At the internal hearing, he was found guilty and dismissed.

Disenchanted by his dismissal, he referred a dispute to the bargaining council and claimed it to be an unfair dismissal. Having failed to resolve the dispute through conciliation, the Metal and Engineering Industries Bargaining Council appointed an arbitrator to resolve the dispute.

The arbitrator concluded the dismissal was fair. But Mr N accused her of being biased and said her finding in the circumstances was unreasonable. According to him, he did not continuously ask the woman out on dates.

With regard to the sending of the pornographic material, his lawyer argued this was not a gross form of sexual harassment, and dismissal as a sanction was harsh compared to what happened to some who did this.

Judge Graham Moshoana said although Mr N “sparsely disputed” that he continuously asked the junior employee on dates, it was common cause that he had sent pornographic material to her.

The judge questioned the defence that the pornography was sent in error.

“It is too much of a fortuity that pornographic material is delusionally directed to a person who has been asked out countless times,” he said.

He added that the fact that Mr N apologised did not change the fact that the woman found the material to be offensive and hurtful.

The judge said the apology was probably a damage control measure. In dismissing the review, he said the decision to fire Mr N remained justifiable and one that any reasonable decision-maker may reach.

“A frail attempt was made to the effect that dismissal for sexual harassment was inappropriate. In many judgments of this court, the Labour Appeal Court and the Constitutional Court, sexual harassment was described as an utterly odious form of misconduct at the workplace.

“Being so described, how can it not be serious enough to lead to a dismissal? Unlike any other forms of workplace misconducts, sexual harassment also offends constitutionally guaranteed rights. The right to equality and dignity, to mention but a few.”

The judge warned that an employer carried a legal obligation to protect employees from any form of harassment.