‘Beard-tickler’ sexual harassment dismissal upheld in Labour Court

First published by GroundUp.

The Labour Court has upheld the dismissal of a man who “tickled” a colleague’s face with his newly grown, long beard, and then hugged and kissed her.

The matter before Judge Edwin Tlhotlhalemaje was a bid by fired South African Institute of Chartered Accountants (SAICA) project manager, Thandanani Umlaw, to overturn a previous ruling by the Commission for Conciliation, Mediation and Arbitration (CCMA) which found his dismissal to be fair.

In summary, Judge Tlhotlhalemaje said that in 2017, Ms S got into the lift with Umlaw and had complimented him on his newly grown beard.

She asked him why he kept his beard long. He told her that he used it to “tickle” and proceeded to demonstrate what he meant by holding her, rubbing his bearded face against her face, hugging her, kissing her on her neck and face and “then for good measure”, kissing her forehead.

“For demonstrating his tickling prowess, he was charged and dismissed for sexual harassment,” said Tlhotlhalemaje. “He then referred an alleged unfair dismissal dispute to the CCMA where it was confirmed.”

Judge Tlhotlhalemaje said that Umlaw had represented himself in the Labour Court, saying no attorney would assist him. “As the facts of this case demonstrate, that is not surprising. On his own version, it is sufficient to attract the severest of penalties.”

Ms S testified at the initial hearing that she was so shaken after the incident, that she went back to her office and reported it to her superior. In Umlaw’s account of the incident, he claimed that she had “smiled throughout” and had not protested.

Ms S refused to accept his apology because he was not being honest about what happened.

In order to determine whether or not Unlaw’s dismissal was reviewable, Judge Tlhotlhalemaje rhetorically asked, “Since when is being complimented on one’s looks an open invitation to give bear hugs, or reciprocate the compliment with a kiss, or even ask the person giving the compliment personal questions?

“The obvious answer is that it has never been, nor can it ever be. Normal civilised citizens will ordinarily reply with a simple ‘thank you’ and carry on with their lives.”

Tlhotlhalemaje said Umlaw viewed the compliment “as an invitation to demonstrate the powers of his new long grown beard by, without warning or consent, tickling Ms S face with it, adding to the tickle a bear hug and a kiss”.

“The most disconcerting part is that he failed at the time and even in these review proceedings to appreciate the enormity of the consequences of his reprehensible conduct. Instead, he persisted with his almost self-righteous approach. And cast aspersion on Ms S as to why she laid a complaint against him.”

The judge also ordered that Umlaw pay the SAICA’s costs for the case. DM