This article was written by Mandi Osher at Norton Rose Fulbright South Africa

Mere sexual attention will not necessarily amount to sexual harassment.  Last month, the Labour Court found that something more may be required.  To qualify as something more serious, sexual attention must cross the line from a sexual proposition to actual sexual harassment.

In this case, an employee accompanied a contractor and a consultant of the employer on a work trip to Botswana.  The three all stayed at the same lodge, had dinner together and whilst the contractor was settling the bill the employee, after confessing his loneliness, enquired if the consultant was interested in a lover for the night.  When the consultant outright refused, the employee left the invitation open with “If you change your mind during the night, come to my room” but he did not pursue the matter further.

The incident led to the employee being charged with sexual harassment, unprofessional conduct and bringing the employer’s name into disrepute.  He was found guilty and was dismissed.

On review, the court found the following:

  • In her correspondence with the employer there was no indication that the complainant was afraid or threatened;
  • There was no power disparity between the applicant and the complainant;
  • The two were not co-employees and in fact did not even work for the same employer;
  • The incident, accordingly, did not lead to a hostile work environment;
  • Despite the incident occurring in a work-related context it occurred outside the work place and after working hours;  and
  • This was a single incident and although there are circumstances in which a single incident may amount to sexual harassment these are usually cases in which there has been an impairment of the complainant’s dignity and bodily integrity which in the current case was lacking.

On the facts, the court found that the proposition, whilst inappropriate and disrespectful did not constitute sexual harassment.  The employee’s conduct also did not alter the image of the employer and the employer’s name was not brought into disrepute.  The court held that even if there was sexual harassment or if the employer’s reputation was damaged, on the facts, the sanction of dismissal would still have been inappropriate in the particular circumstances.  The award was set aside and replaced with an order for reinstatement and the employee was given a final written warning.

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