Labour Court underscores victim perspective in workplace harassment ruling

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The judgment provides critical insights into how harassment allegations should be assessed, the role of arbitrators, and the importance of applying a victim-centred lens when addressing workplace harassment allegations.

Background

Marius Olwage, a manager in Nedbank’s Recoveries division, was dismissed following allegations of sexual harassment and harassment made by a colleague, C.W. It was alleged that Olwage made unwelcome and inappropriate comments about C.W’s hair, clothing, and appearance, including remarks such as 'you are so beautiful', 'you are so stunning', 'black looks good on you', and 'why do you not sit in my lap'.

Despite being asked to stop, he continued, and at some stage said to her, "I don’t want to tell you, you look stunning, just now I am going to get in trouble with you."

It was further alleged that Olwage deliberately created loud noises by slamming a metal bin on two occasions, knowing it would frighten C.W and affect her well-being.

Following a disciplinary hearing, Olwage was summarily dismissed. However, the CCMA arbitrator found the dismissal substantively unfair and awarded Olwage R400,424.39 in backpay.

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The findings of the arbitrator

The arbitrator concluded that the comments made by Olwage were ‘innocuous’ and did not amount to sexual harassment. He questioned C.W’s credibility, suggesting she had a personal vendetta and a general dislike of men. He also found that the bin-slamming incidents did not constitute harassment.

The arbitrator’s core findings were based on the following:

• He relied on the testimony of Olwage’s witnesses, who stated that he complimented colleagues of all genders, suggesting the comments were not intended to harass C.W;
  
• He interpreted C.W’s act of walking away after the ‘sit on my lap’ comment as not necessarily indicative of discomfort or harassment;
  
• He considered C.W’s delayed reporting of the incidents as a factor that undermined her credibility; and
  
• He concluded that C.W may have fabricated the allegations in order to ‘get even’.

Nedbank took the arbitration award on review, arguing that the arbitrator had committed gross irregularities and legal errors in that the arbitrator misapplied the legal test for sexual harassment by focusing on Olwage’s intent rather than the impact of his conduct on C.W.

It further argued that the arbitrator failed to apply the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (Code), ignored the victim’s perspective, and placed undue weight on C.W’s alleged motives. Additionally, it submitted that the credibility findings made by the arbitrator were not supported by the record.

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The findings of the Labour Court

In applying the test for reviews, the Court found that the arbitrator’s decision was one that no reasonable decision-maker could have reached. The Labour Court’s key findings included:

• Failure to apply the Code: The arbitrator neglected to apply the Code once it was clear the case involved sexual harassment. Had the arbitrator done so, he would have recognised that C.W’s act of walking away after the lap comment was a clear non-verbal indicator of unwelcome conduct, as recognised by the Code.
  
• Misinterpretation of the legal test for harassment: The arbitrator incorrectly focused on whether Olwage was pursuing sex, rather than whether the conduct was unwelcome conduct of a sexual nature and had a negative impact on C.W.
  
• Credibility findings not supported by the evidence: The arbitrator’s conclusion that C.W disliked men (referring to them as ‘pigs’ or ‘dogs’) and fabricated the allegations was not borne out by the transcript of the arbitration proceedings. Her testimony was consistent, and on a balance, her evidence ought to have been preferred over that of Olwage’s evidence.
  
• Neglecting C.W’s perspective: The arbitrator failed to assess how C.W perceived the conduct and whether her perception was reasonable. The Labour Court relied on the case of Motsamai v Everite Building Products [2011], where the Labour Appeal Court held that sexual harassment ‘must be viewed from the victim’s point of view, how the victim perceived it and whether or not that perception is reasonable’.
  
• Harassment allegation: The Labour Court found that the arbitrator had conflated Olwage’s sexual harassment charge and the general harassment charge. Olwage’s deliberate bin-slamming, knowing it would frighten C.W, constituted harassment, especially in the context of prior conduct.

Conclusion and key takeaways

The Labour Court concluded that the arbitrator’s findings were disconnected from the evidence and involved speculation. As a result, the arbitration award was reviewed and set aside, and the dismissal of Olwage was found to be substantively fair.

For employers and decision-makers, this case reinforces that allegations of sexual harassment must be approached through the lens of the complainant, with careful attention to how the conduct was experienced and whether that perception was reasonable. The Code provides clear and comprehensive guidelines for dealing with such allegations, and these must be applied by arbitrators consistently and objectively (not selectively or subjectively).