Labour Court overturns ruling in Nedbank sexual harassment case, confirms dismissal

Sexual harassment in the workplace came under the spotlight in the Johannesburg Labour Court when a female bank officer accused a male colleague of inappropriate conduct towards her, which included asking her, “Why don’t you sit on my lap?”

Following the allegations and a subsequent disciplinary hearing, the man, who worked as a field agent for Nedbank, was fired.

The man, only identified as Mr O, turned to arbitration proceedings, where the commissioner found his dismissal to be unfair.

Nedbank was ordered to pay him more than R400 000 in back pay. The bank, unhappy with this ruling, turned to the Labour Court to have it overturned.

Acting Judge ZM Navsa seriously questioned how the arbitrator chose to believe the version of O that he simply complimented the victim, over her version that she was sexually harassed. 

O was charged with misconduct by Nedbank for sexually harassing his female colleague from September 2020 to April 2021. It had emerged that even after the victim had told him to stop making comments regarding her, he simply continued.

He was also found guilty of harassment after the victim had complained that he, on two occasions, “deliberately created a loud noise by shutting the metal recycling bin with force, knowing that this would frighten her”.

The arbitrator, in ruling in favour of O, accepted evidence on his behalf that he complimented everybody, of both sexes, in the office, and that the victim usually appreciated the comments. It was also said that O always banged the dustbin.

The Labour Court heard that O often made comments about the victim’s appearance and that these comments were unwanted or unwelcome. According to Nedbank, she had communicated this much to O, and he was in no doubt about her stance in relation to them. 

He often commented on her hair, clothing, and appearance, and he would say things to her including that she is beautiful and stunning. The victim said these comments were upsetting and made her feel uncomfortable. She had hoped that this behaviour would stop, but it continued unabated.

The victim said that during Covid, she had to take the temperatures of employees in the office. When she approached O for this purpose, he said to her, “Why do you not sit in my lap?”. She was upset and offended by this but did not want to cause conflict in the office, so she walked away.   

The next day, she told him that his behaviour was inappropriate, unwanted, and made her feel uncomfortable. She asked him to stop immediately.

O’s recollection of this incident was that the victim had just returned to work from a trip to the Drakensberg and had taken his temperature that morning as part of Covid testing. 

He said she was badly sunburned, and after telling her this, she told him that he should see her legs. As she was trying to lift the part of her pants to show him her badly sunburned leg, she stumbled with the thermometer in her hand.

It was at this point that he told her that if she stumbled, he would not be able to catch her, and she was going to end up falling on his lap. He did not ask her to come and sit on his lap, he explained. 

The arbitrator, who earlier ruled in favour of O, however, brushed these comments off, as well as those regarding her appearance.

He concluded that these did not constitute sexual harassment, as they were merely compliments.

Judge Navsa also frowned upon the findings by the arbitrator that the victim “disliked men in general”.

The Labour Court overturned the arbitrator’s findings and confirmed the dismissal.

Cape Times