A man who sexually harassed a fellow employee in 2018 and who was dismissed as a result failed in his Labour Court bid to review a Commission for Conciliation, Mediation and Arbitration (CCMA) award that found his dismissal substantively fair but procedurally unfair.
The CCMA in July 2019 awarded Oupa Shabangu three months’ compensation for the procedural unfairness decision.
Some of the issues that were found to be procedurally unfair included that there was no grievance lodged, the issue was properly investigated by the company and why the complainant testified from a different room instead of appearing in person during the disciplinary hearing.
Shabangu was unhappy with the CCMA decision and approached the Labour Court to review and set aside the CCMA award. He said he should not have been dismissed.
The sexual harassment incident occurred in Pepkor's boardroom at one of the company’s stores in Mokopane, Limpopo, on February 19 2018.
According to Shabangu, he met a woman known as CM seated in the boardroom.. He “tapped her upper body and took a seat next to her”.
He considered her PowerPoint presentation and shared his advice. They chatted about issues that were unrelated to work and “started fooling around in a playful manner by nudging and pushing” each other and “had a nice chuckle”. He denied touching CM in an uncomfortable way.
However, CM's statement to the disciplinary hearing provided a materially different account. She stated that on the day of the incident, she was in the boardroom preparing for her winter sales meeting. She said Shabangu had offered to come to her store to check her presentation and she had no problem with that.
Shabangu entered the boardroom and he found her seated, having coffee, her back facing the entrance.
“Oupa came in, he closed the door, approached me and wrapped his arms around my upper body and started groping my breasts. Then I responded and asked him, 'Now what are you doing? No, Oupa, get off me!’” her statement read.
CM said Shabangu told her to relax and it was just going to be quick.
“He held me so tightly that I could not move. While I was wrestling to set myself free, I managed to escape the chair. I was in shock and shaking all over. I then ran to the other side of the boardroom.”
CM said Shabangu followed her and pressed her against the wall. He forced his mouth onto hers and said he wanted her. “I said 'No, Oupa! This is not appropriate, we are at work. I don’t want to do anything of that manner at all.'
“He tried to force down my skirt and panties, and forced his hand between my thighs and pushed his fingers inside me. At this point I felt helpless and was getting weaker. He then tried with the one hand to untie his pants. That’s when I said to him that I would scream. He then stopped, released me and sat on the chair.”
CM said she immediately went to the door, then he stood up, rushed ahead of her and opened it. The woman stepped out of the boardroom.
The disciplinary hearing was held on March 2 and 5 2019. Shabangu was dismissed on March 5 that year.
During the CCMA proceedings, Shabangu challenged CM that she did not report the incident immediately and CM was asked questions including why she did not scream when Shabangu was holding her against the wall.
“During cross-examination, CM clarified that the applicant penetrated her using his finger,” labour court judge Molatelo Makhura said in a judgment passed on February 27.
The CCMA commissioner found that CM’s evidence established unwanted conduct of a sexual nature by Shabangu.
In the court proceedings, Shabangu contended that the commissioner failed to assess the credibility and reliability of CM’s evidence and said the commissioner should have found that CM’s evidence was improbable.
Shabangu said at the time of the incident, the door was not locked, junior staff members were outside and they would have overheard when he “pushed” her against the wall.
The judge said Shabangu did not dispute the evidence of CM. In particular, that he wrapped his hands around CM’s upper body, groped her breasts, CM wrestled to free herself from the applicant’s grip, that Shabangu held CM against the wall, that he told CM he wanted her, touched her private parts and penetrated her using his finger.
Makhura said in his desperate criticism of the award, Shabangu made some preposterous speculative submissions to convince the court that the incident did not take place.
“He submitted that if the incident took place, CM, because of her seniority, was at fault because she should have reprimanded him.”
Shabangu said the incident could not have taken place because he did not lock the boardroom door and in a case of physical sexual harassment the perpetrator “would normally lock the door”.
The judge said Shabangu's submissions defied logic.
“They establish a shocking mental state of a man who sees no wrong with touching his female colleague inappropriately, a man who believes that because his female colleague did not scream and shout when he made these inappropriate, unwelcome and offensive advances, therefore she welcomed those advances ...”
Makhura said the man should be nowhere near any workplace, especially one with 80% female employees.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.