The Constitutional Court on 17 June 2021 handed down judgment in McGregor v Public Health and Social Development Sectoral Bargaining Council and Others (CCT 270/20)  ZACC 14, in respect of a compensation order in relation to the misconduct of Dr McGregor regarding four cases of sexual harassment.
Facts of the case:
- Following an internal disciplinary enquiry, Dr McGregor who was employed as head of anaesthesiology was found guilty on four counts of sexual harassment.
- The dismissal was founded on incidents involving a medical student, some thirty years junior to Dr McGregor, wherein it was alleged that Dr Mc Gregor dared the medical student 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 whilst they were driving together.
- Pursuant to the dismissal, Dr McGregor referred the dispute to the Public Health and Social Development Sectoral Bargaining Council (“Bargaining Council”).
- Although the arbitrator had found Dr McGregor guilty in three of the four charges, he held that the dismissal was both procedurally and substantively unfair in that Dr McGregor had not been treated in the same way as another employee who faced similar charges. Furthermore, that Dr McGregor was not afforded a proper chance to defend himself in respect of evidence that had been omitted during the disciplinary enquiry.
- The arbitrator taking into account the nature of the misconduct and considering that reinstatement would be intolerable awarded compensation in the amount of R924 679.92.
- Not agreeing with the outcome, Dr McGregor took the matter on review to the Labour Court, as well as the Labour Appeal Court claiming that his conduct could not have constituted sexual harassment and that he should not have been dismissed.
- However, both courts found that the dismissal was only procedurally unfair, but substantively fair and the amount of compensation remained unaltered.
- Still displeased, Dr McGregor had appealed to the Constitutional Court, of which appeal was dismissed following the ruling that the issues had been well ventilated in the previous two courts and that that he will not succeed in the Constitutional Court.
- The Constitutional Court however upheld a cross-appeal by the Department of Health in the argument that the amount of compensation should be decreased.
- The Constitutional Court held that the appropriateness of an order for compensation had to be viewed through the lens of the seriousness of the misconduct.
- The Constitutional Court recognised that Dr McGregor had a right to a fair labour practice.
- As such the Constitutional Court decreased the amount of compensation from six to two months’ compensation for procedural irregularity.
- The Constitutional Court held that it is unjust for a man to be paid close to R1 million in compensation for a procedural glitch in a case where a person was found guilty of sexual harassment and would have been dismissed for these actions.
“…. 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…”
Employers must invoke the power afforded to them by the Constitution and put into place comprehensive policies to combat sexual harassment and promote gender equality in the workplace.
Source: www.ccma.org.za| By Amos Tshabalala