South African law treats sexual harassment as a serious form of misconduct that infringes upon a person's dignity and other fundamental rights.

The seriousness with which it is viewed by the courts is illustrated by the Labour Appeal Court ("LAC") decision in MEC for Education (North West Provincial Government) v Makubalo. This judgment emphasises the principle that the decision to discipline for instances of sexual harassment lies with management and the fact that the victim has "settled" the matter with the perpetrator does not prevent the employer from instituting disciplinary action. The seriousness with which this type of misconduct is viewed is also evident from the fact that the LAC accepted that the previous inconsistent application of discipline need not prevent the perpetrator from being disciplined.

This case concerned allegations of sexual harassment and financial mismanagement levelled against the school principal of Bafokeng High School. The principal, JMK Makubalo ("Makubalo"), was dismissed for financial mismanagement and three incidents of sexual assault that took place in 1998 and 2000 involving his subordinate, Dora Monegi ("Monegi"), a teacher at the school. Aggrieved by his dismissal, Makubalo referred an unfair dismissal dispute to the Education Labour Relations Council ("ELRC"). The arbitrator appointed to adjudicate the matter found Makubalo's dismissal to have been substantively fair. In coming to this conclusion, the arbitrator found that Makubalo had abused his position of power, as the school principal, over Monegi, his subordinate, and was guilty of sexually assaulting Monegi during visits to her home in 1998 and 2000. The arbitrator found that the evidence demonstrated that at the year-end party in 1998, Makubalo had held Monegi by the cheeks, kissed her and touched her genitals in the lounge in front of other people. In relation to the 2000 incident, Makubalo was found to have "grabbed Monegi around her buttocks and attempted to drag her out of the kitchen". The arbitrator also found that Makubalo had committed serious irregularities in handling school funds and that the trust relationship between Makubalo and the relevant member of the provincial executive council had been irretrievably severed.

Makubalo took the arbitrator's award on review to the Labour Court. The Labour Court found that the award had been well reasoned and that it was clear from the transcript of the arbitration proceedings that Makubalo had sexually assaulted Monegi. However, the Labour Court found that the arbitrator had failed to consider that the allegation of sexual harassment had been settled when the employee acknowledged his wrongdoing and apologised to his victim in a meeting that took place between the parties and a third party. The pre-arbitration minute accordingly recorded that the parties agreed that the allegations of sexual harassment were amicably resolved. In light of this, the Labour Court found that the arbitrator should have found the matter to have been settled insofar as the sexual harassment allegation was concerned.

The Labour Court also found that the arbitrator had failed to consider the issue of inconsistent application of discipline. In particular, the parties had agreed (again, in the pre-arbitration minute) that no disciplinary steps had been taken against another employee accused of the sexual assault of female learners in 1996. The Labour Court found that the arbitrator had therefore exceeded his powers by failing to find that the employer had applied discipline inconsistently.

The court took the view that Makubalo was guilty of financial mismanagement but that this alone did not warrant his dismissal. It ordered that he be retrospectively reinstated with full back pay. The employer took this decision on appeal to the LAC.

In relation to the defence Makubalo raised at the arbitration, that the sexual assault matter had been settled at the meeting with the third party, the LAC considered the nature of a pre-arbitration agreement and noted that, once signed, it is binding on the parties as well as the court (or appropriate dispute resolution tribunal). However, the court found that it appeared from the record of the arbitration proceedings that Makubalo's testimony contradicted the provisions of the pre-arbitration agreement.

Makubalo's version at the arbitration was that he was never guilty of sexual assault but had only asked his victim: "please forgive me if I have wronged you in the past and I forgive you if you have wronged me in the past." The LAC accepted the employer's argument that the "settlement" contained in the pre-arbitration minute was not related to the complaint before the arbitrator. Therefore, the arbitrator could not be faulted for finding that the pre-arbitration minute did not preclude the allegation of sexual harassment from being considered.

The LAC went further and noted that an employer is nevertheless entitled to take disciplinary action against an employee for contraventions of the accepted behavioural standards in the workplace. The resolution of a dispute between employees does not render that misconduct resolved from the employer's perspective. Indeed, misconduct of such a serious nature may impact the trust relationship and the employer has a duty in terms of the Code of Good Practice: Sexual Harassment to create and maintain a working environment in which sexual harassment is unacceptable.

The court went on to consider the issue of the inconsistent application of discipline. It stated that while the "parity principle" requires employees to be measured by the same standards, this is by no means decisive of the outcome on the fairness of a dismissal. The fact that another employee committed a similar transgression in the past but was not disciplined does not give an employee licence to commit serious forms of misconduct with impunity.

Makubalo was a senior employee in a position of authority. This, coupled with the seriousness of the allegations of sexual assault, required the employer to act decisively and apply the appropriate disciplinary mechanisms. It would have been patently wrong for the employer not to discipline such misconduct on the basis that it had previously failed to do so, especially considering the nature of the misconduct and the workplace within which it was committed.

The LAC accordingly found that the arbitrator had reached a decision that a reasonable decision-maker in the circumstances could have reached and that the Labour Court had erred in finding otherwise. Accordingly, the decision of the Labour Court was set aside and replaced with an order dismissing the employee's application to review the arbitration award.

Employers should continue to act swiftly and appropriately when faced with sexual harassment allegations and should pursue disciplinary proceedings even if the alleged perpetrator and victim have purportedly settled the matter. The overriding consideration is acceptable standards of behaviour in the workplace and for the employer to ensure that it maintains a working environment that is free from all forms of harassment. Insofar as the issue of inconsistent application of discipline is concerned, this decision seems to suggest that there may be instances where this is justifiable and that this is but one factor to take into account when considering the overall fairness of the decision to dismiss. The application of the so-called "parity principle" is not a free licence to employees to commit acts of misconduct or to encourage unacceptable behaviour. A defence of the inconsistent application of discipline must be properly made for it to succeed.

Nils Braatvedt is a candidate attorney in the employment department.

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