Ekurhuleni municipal employee sex pest must be fired, rules Labour Appeal Court

It’s been a long legal battle for a woman who was sexually harrassed twice by a municipal employee, when she went to book for, and then when she went to write, her driver’s licence test, but the Labour Appeal Court has now finally ruled that the offender must be dismissed.

“Sexual harassment committed by an official employed in the public sector, in the course of the provision of public services to a member of the public, constitutes serious misconduct insofar as it amounts to an abuse of a public position of authority,” Acting Labour Appeal Court Judge Kate Savage ruled in a recent judgment.

“Where such harassment is committed more than once and directed at the same member of the public this makes it all the more serious,” she said.

Judge Savage, along with Judges Dennis Davis and Elizabeth Kubushi, presided over a matter brought to the court by the Ekurhuleni Metropolitan Municipality which had fired Justinus Mabetoa following a disciplinary hearing in which he was found to have committed two acts of sexual harassment.

The incidents were reported to the municipality by a woman who in June 2015, went to the vehicle licensing centre to book her learner’s test. She wrote the test at the end of August.

On that day she reported to a supervisor that Mabetoa had sexually harassed her on both occasions.

She said on the first occasion, he had suggested he would take down her number, and made sexual remarks, such as “I look like I taste nice in bed”. She said she was shocked but decided to ignore this.

But when she returned to write her test, Mabetoa again made sexual remarks, suggesting that he would go to her home, and when he took her fingerprints he rubbed her hand in an “uncomfortable way”.

Aggrieved at being dismissed, Mabetoa referred an unfair dismissal dispute to the South African Local Government Bargaining Council.

The arbitrator found that it was probable that Mabetoa was guilty of sexual harassment, but said that firing him was too harsh. Mabetoa’s dismissal was ruled to be substantially unfair and was replaced with a final written warning.

The municipality then took this decision on review to the Labour Court which ruled that the complainant’s version “did not make any sense and barely constituted evidence establishing guilt”. Referring to the fact that the complainant had not reported the first incident, the court said it was “unthinkable” that if she was so shocked, she could so easily let it slide and do nothing about it.

The Labour Court ordered that Mabetoa be reinstated.

But the municipality, again, was not happy, and took this decision on review to the Labour Appeal Court.

Judge Savage, in finding that Mabetoa’s dismissal was substantially fair, took issue with the way the Labour Court had handled the case. She said the court had handled the matter more as an appeal than a review. It had not taken into account that the woman’s account was not challenged by Mabetoa in cross-examination before the bargaining council.

Even in his own evidence, Mabetoa had admitted that he had made some comments to her.

“The discrepancies in her evidence were not of such a nature as to warrant the wholesale rejection of it,” Judge Savage said.

She said the Labour Court had questioned why the complainant had not approached a different official to help her on the second occasion. This, Judge Savage said, was “without regard to the fact that she was entitled to access public services without having her rights violated and there was no obligation on her to seek out a different official to serve her in order to safeguard her rights”.

“In undertaking its task in the manner that it did, the Labour Court only further contributed to her indignity.” DM

First published by GroundUp.