In Campbell Scientific Africa (Pty) Ltd v Simmers (2015 (4) SA 247 (LAC)), the Labour Appeal Court (LAC) made strong statements about sexual harassment in the workplace. It was called upon to determine an appeal against a decision of the Labour Court in which the dismissal of Mr Simmers for sexual harassment and unprofessional conduct was found to be substantively unfair and his retrospective reinstatement ordered, subject to a final written warning valid for 12 months. Mr Simmers, 48, and a Ms Markides, 23, worked for different employers but were on a work trip in Botswana relating to a joint project their companies were working on. On the last night of their trip, Mr Simmers, Ms Markides and Mr Simmers’ colleague, a Mr Le Roux, had dinner together and, while Mr Le Roux was settling the bill, Mr Simmers and Ms Markides had an exchange that culminated in Mr Simmers’ dismissal. According to Ms Markides, Mr Simmers told her that he felt lonely; he made advances towards her and asked her to come to his room, which she rebuffed. He asked her if she had a boyfriend, which she confirmed. Mr Simmers then asked Ms Markides to phone him in the middle of the night if she changed her mind. According to Mr Simmers, he asked Ms Markides once and half-jokingly, “do you want a lover tonight?” and, after Ms Markides rebuffed the request, he said to her: “Come to my room if you change your mind”. This was a once-off incident and Mr Simmers did not persist with his conduct after Ms Markides rebuffed him.
Central to the determination of the issues before the Labour Court was whether Mr Simmers’ conduct constituted sexual harassment or “mere sexual attention”, and, if it did, whether it was sufficiently serious to justify dismissal. In arriving at its decision that Mr Simmers’ dismissal was substantively unfair, the Labour Court had found it relevant that Mr Simmers and the complainant were not co-employees, that they would probably never work together again, and that “there was no disparity of power” between them. In addition, the conduct was “once-off” and was found to have occurred outside of the workplace and outside working hours.
However, the LAC ultimately held that the Labour Court had misdirected itself in finding that Mr Simmer’s conduct could be classified as “sexual attention” rather than “sexual harassment”. On appeal, the LAC held that Mr Simmers’ dismissal for sexual harassment and unprofessional conduct was substantively fair. The LAC stated that it considered sexual harassment the ‘most heinous misconduct that plagues a workplace’ and that it creates an offensive and intimidating work environment ‘that undermines the dignity, privacy and integrity of the victim and creates a barrier to substantive equality in the workplace’.