As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Even though sexual harassment in the workplace is prohibited by South African labour law, it remains a serious problem across the country – as the constant stream of court judgments on the matter illustrate. Not all employers, nor all judges and commissioners, always seem to recognise the serious harm inflicted on employees who are sexually harassed. They should all be compelled to study the recent Constitutional Court judgment on sexual harassment for a lesson on what is at stake.
Dr Charles McGregor was employed as Head of Anaesthesiology at George Hospital, when he was found guilty of sexually harassing a newly qualified doctor, who was completing an internship under his supervision. Dr McGregor stood accused of making unwelcome suggestions of a sexual nature towards the victim “when he dared her to remove her clothes and swim naked”; of inappropriately pressing himself against the victim whilst demonstrating how to carry out a procedure; and of inappropriately touching the victim’s leg.
Following an internal disciplinary inquiry in which he was found guilty of four charges of misconduct that amounted to sexual harassment, Dr McGregor was dismissed from his job. Dr McGregor referred an unfair dismissal dispute to the Public Health and Social Development Sectoral Bargaining Council where an arbitrator confirmed that Dr McGregor was guilty of three of the four charges of sexual misconduct lodge against him. However, the arbitrator concluded that the dismissal was procedurally and substantially unfair and awarded Dr McGregor compensation in the amount of R924 679.92, equivalent to six months’ remuneration.
Dr McGregor should have thanked his lucky stars for this windfall, and should have let the matter rest. Instead, he appealed the decision, first, to the Labour Court and then to the Labour Appeal Court, arguing that his conduct neither constituted sexual harassment nor did it warrant dismissal. The Labour Court confirmed his guilt, and overturned the arbitrators’ finding that the dismissal was substantively unfair, while confirming that there were procedural problems with the disciplinary process. Despite finding that the dismissal was substantively fair, both courts declined to interfere with the award of almost R1 million compensation to Dr McGregor.
Displaying the kind of hubris and arrogance one might expect from a sexist, ignorant, and privileged man, Dr McGregor made the mistake of appealing the matter to the Constitutional Court. To its credit, the Western Cape Department of Health lodged a cross appeal on the basis that the Labour Court and the Labour Appeal Court erred in not reducing the amount of compensation awarded to Dr McGregor.
In a unanimous judgment penned by Khampepe J, the Constitutional Court dismissed McGregor’s appeal, but upheld the Department’s cross-appeal, and reduced the compensation awarded to McGregor (McGregor v Public Health and Social Development Sectoral Bargaining Council and Others). The first notable aspect of the judgment is its emphasis on power imbalances in the workplace, and its acceptance that “[a]t its core, sexual harassment is concerned with the exercise of power and in the main reflects the power relations that exist both in society generally and specifically within a particular workplace”.
This emphasis on power discrepancies between the parties in sexual harassment cases is important. It serves as a reminder that the definition of sexual harassment in the relevant Employment Equity Code, which defines sexual harassment as “unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace”, should be read together with the section of the Code requiring consideration of “the respective positions of the employee and the perpetrator in the workplace” when assessing whether conduct amounts to sexual harassment. Applying this insight to the present case, the court noted the power imbalance between the two parties in this case and stated:
Not only does the power imbalance tip according to the professional positions, but it topples in terms of gender at the intersection of age. The Labour Court itself noted that it is impossible to “imagine any circumstances where given the nature of the relationship [between them], [Dr McGregor’s] conduct vis-à-vis an intern would be appropriate”. And, it went on to state that the conduct would have been “grossly unacceptable” no matter who it was directed at, but “[t]he disparity in age and seniority is clearly an aggravating factor”.
The court also emphasised that sexual harassment impacts negatively on the victim in a variety of different ways. Not only “is it demeaning to the victim”, but it also “undermines their dignity, integrity and self-worth, striking at the root of that person’s being”. It “strips away at the core of a person’s dignity” and “promotes a culture of gender–based violence that dictates the lived experiences of women and men within public and private spaces and across personal and professional latitudes”. Moreover, sexual harassment can also make it impossible for the employee to continue in their job. Quoting from a 2012 Industrial Court judgment, the court noted that:
[Sexual harassment] creates an intimidating, hostile and offensive work environment. . . . Inferiors who are subjected to sexual harassment by their superiors in the employment hierarchy are placed in an invidious position… When [a victim] has to [deal with this] in an atmosphere where rejection of advances may lead to dismissal, lost promotions, inadequate pay rises . . . her position is unenviable. Fear of the consequences of complaining to higher authority . . . often compels the victim to suffer in silence.
Another notable aspect of the judgment is the endorsement of the view that the prevalence of sexual harassment in the workplace “poses a barrier to the achievement of substantive equality in the workplace”. Substantive equality proceeds from the understanding that there are structural or systemic barriers to the achievement of equality which may require the state or (in this case) employers to take positive steps to dismantle these barriers. It also means that inequality and discrimination should not be understood as a demand for the equal treatment of individuals or groups who are unequally situated as a result of structural racism, patriarchy or other systems that produce and maintain power hierarchies.
It is for this reason that the Constitutional Court long ago endorsed the view that affirmative action is not only permitted, but is sometimes required in South Africa to contribute to the achievement of substantive equality. But while the Constitutional Court has long been comfortable with the idea that differently situated people should sometimes be treated differently to address the effects of past and ongoing discrimination against such individuals, it has not developed arguments about the kinds of obligations the demand for substantive equality impose on the state or (in this case, employers) to dismantle the structural or systemic barriers faced by those who find themselves on the wrong side of any power hierarchy.
For example, South African courts regularly endorse targeted employment equity policies, arguing that such policies do not amount to unfair discrimination as their aim is to achieve substantive equality. But our courts have said little about the duty of employers to dismantle the structural and systemic barriers that encumber the progress and flourishing of those who find themselves on the wrong side of any power hierarchy in the workplace.
The latter is about more than curtailing the bad behaviour of sexist co-workers. It is about changing the workplace rules originally designed in the image of an imaginary middle class, middle aged, white man. Rules, for example, that take for granted that their (senior) employees are never the primary caregivers of children. It is about changing the institutional culture of a workplace, including any aspect of that culture that condones or turns a blind eye to the sexual harassment of women.
I read the Constitutional Court judgment as an acknowledgement that all these factors poses a barrier to the achievement of substantive equality in the workplace. A next step would be to start a conversation about the kinds of constitutional obligations this may impose on employers, the state and other institutions.
In conclusion, the Constitutional Court had to decide what to do about the almost R1 million in compensation originally awarded to the sexual harasser. It considered removing the compensation in its entirety, but decided against this as employees “are entitled to fair labour practices and procedurally regular dismissals”. In the result, it reduced the award of compensation to an equivalent of two months’ remuneration. A pity. I would have thought that R1 compensation would have been more than enough.BACK TO TOP