Constitutional Court sends a valiant message that sexual harassment in the workplace will not be tolerated.

McGregor v Public Health and Social Development Sectoral Bargaining Council and Others

(CCT 270/20) (2021) ZACC 14

Facts of the case:

>     Dr. McGregor was employed as head of anaesthesiology at a hospital and was dismissed after being found guilty on four counts of sexual harassment.

>     The dismissal was based on incidents involving a newly qualified intern, thirty years younger than Dr. McGregor and it was alleged that he:

-      dared the intern to remove her clothes and swim naked;

-      suggested that she has an affair with him;

-      inappropriately pressed himself against her while demonstrating how to carry out a medical procedure; and

-      making sexual advances and inappropriately touching her leg while they were driving together.

>     Dr. McGregor felt that he was unfairly dismissed and referred a dispute to the Public Health and Social Development Sectoral Bargaining Council (“Bargaining Council”). Although the Bargaining Council confirmed guilt in three of the four charges, it was held that the dismissal was both substantively and procedurally unfair. This was due to him not being treated the same as other employees who faced similar charges (substantively) and not being afforded a proper chance to defend himself (procedurally).

>     The Bargaining Council awarded compensation in the amount of R924 679.92 (six months' salary), but did not order reinstatement.

>     Dr. McGregor took the matter on review to the Labour Court, as well as the Labour Appeal Court. He claimed that his conduct did not constitute sexual harassment and that he should not have been dismissed. Both these courts confirmed his guilt and that the dismissal was procedurally unfair, but found that the dismissal was substantively fair. The compensation reward remained unaltered.

>     Still not satisfied, Dr. McGregor appealed to the Constitutional Court where his appeal was dismissed. The Constitutional Court ruled that the issues had been adequately addressed in the other courts and that he will not succeed in the Constitutional Court.

>     The Department of Health lodged a cross appeal in the Constitutional Court and argued that the amount of compensation should be decreased.

What the Constitutional Court said:

>     The Constitutional Court recognised that, in spite of the seriousness of the misconduct and being found guilty on three of four charges of sexual harassment, Dr. McGregor has the right to fair labour practices that includes a fair procedure leading up to dismissal. 

>     The Constitutional Court further held that it is against equity and justice to be awarded almost R1 million in compensation for only a procedural glitch in a case where a person was found guilty of sexual harassment and would have been dismissed. The award of compensation was reduced to two month's salary.

>     Justice Khampepe stated the following:

“at its core, sexual harassment is concerned with the exercise of power and in the main reflects the power relations that exist both in society generally and specifically within a particular workplace”.

>     The power imbalance in this case was described as “glaring”, given that the victim was a female and significantly younger than Dr. McGregor.

Conclusion:

With this judgment, the Constitutional Court sends out a valiant message about the seriousness of sexual harassment.

“…sexual harassment strips away at the core of a person's dignity and is the antithesis of substantive equality in the workplace. It also promotes a culture of gender–based violence that dictates the lived experiences of women and men within public and private spaces and across personal and professional latitudes.”

Did you know…This judgment was penned by Justice Khampepe, who is the first woman to be appointed as acting chief justice of the Constitutional Court.

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