Pretoria – An administrative assistant at Nxuba Municipality in the Eastern Cape lost out on R150 000 in compensation from her employer after a judge on appeal found that the sexual conduct she complained about did not seem unwelcome.
The woman, only identified as Ms P, due to the nature of her complaints, was earlier awarded R150 000 in damages after the CCMA found that the operations manager, identified as Mr F, had committed acts of sexual harassment.
It was found that the municipality, as her employer, had failed to take appropriate steps to address her grievances. The municipality, however, appealed the matter before the Labour Appeal Court.
The court found that in written conversations between the two, Ms P referred to Mr F as “honey” and “sweetie”, which suggested her manager’s advances were not that unwelcome.
It was found she indeed used “affectionate” and “seductive language” in her communications with Mr F, which on the probabilities indicate that the sexual conduct was not unwelcome, Acting Deputy Judge President Bantubonke Tokota said.
He overturned the earlier finding that the employee had suffered sexual harassment in the form of unfair discrimination.
It all started in February 2015, when Mr F was transferred to Nxuba Municipality. Because of the limited office space, he had to share the same office with Ms P for two to three months before moving to his own office.
Around April 2015, he moved to his own office.
Ms P claimed that from February to July 2015, she was subjected to sexual harassment by Mr F in that at times he would touch her private parts and insert his finger into her tights, causing a hole in them. At one stage it is alleged that he demanded that she should perform oral sex to stimulate him.
She had alleged that even after Mr F had moved to his office, he would call her and touch her private parts, press her breasts hard and ask her for oral sex, which she complied with.
At some point, she vomited after performing oral sex, she said. According to her, she did not resist because she feared dismissal and because he was her boss.
She testified that “maybe because of his authority over me I then would give him some latitude”.
In July 2015, she reported the conduct of Mr F to her boyfriend, who advised her that she should report the matter to the authorities. Her boyfriend warned her that if she did not report it, he would do so.
She then reported the matter to a shop steward and about four months later, to the labour relations division.
According to her, she then received reports from Mr F reflecting poor work performance on her part. She suffered from a stress disorder during this period and was admitted to a clinic.
An internal hearing was eventually held but the presiding officer could not find any basis for the complaint of sexual harassment. She, however, made certain recommendations which included emotional intervention to be arranged for Ms P.
It was also recommended that she be relocated within the department as her working relationship with Mr F was “damaged”.
Dissatisfied with the outcome, Ms P referred the dispute to the CCMA, which found that she was sexually harassed and that the municipality had to pay her R150 000 in compensation.
But on appeal it was found that she did not resist the conduct. She did not walk away, but knowing that this conduct would persist, she kept on responding to the calls by Mr F to his office.
Only after three months did she raise the complaint with her boyfriend.
Despite being urged by him to report the harassment to her employer, she waited a further four months before lodging a grievance with the employer.
“She further used affectionate and seductive language in her communications with Mr F, which, on the probabilities, indicate that the sexual conduct was not unwelcome,” Judge Tokota said in ruling in favour of the municipality.