What to do when you suspect a sexual harassment complaint is not genuine.
Since the Ntsabo and Grobler cases, most large employers are aware of the fact that sexual harassment claims have to be taken seriously or they have the potential to cost a lot of money and draw negative media attention.
The Code of Good Practice on the handling of cases of sexual harassment is well written and self-explanatory. There are two procedures for handling sexual harassment complaints:
a formal process which involves the alleged perpetrator being required to face a disciplinary enquiry; and an informal procedure whereby the alleged perpetrator is counselled without formal disciplinary action being taken.
Although the complainant can let the employer know which procedure he or she wants the employer to take, the employer can, on good reason, override the complainant’s wishes and adopt the formal approach. For example, where other employees have come forward to complain about the same perpetrator, the employer needs to take strong action which can only occur if the formal approach is followed. The alleged perpetrator has rights which the employer has to guarantee.
What is not so clear however, is what you do when the ‘victim’ is not actually a victim but is claiming sexual harassment when no harassment actually took place at all? For example the ‘victim’ may actually be the perpetrator and be aiming to get back at another party because that party rejected their advances. There is an old saying “Hell has no fury like a woman scorned”. This was the theme of the Hollywood movie Disclosure featuring Demi Moore and Michael Douglas.
In a 2009 case SAMWU obo Jaars / City of Cape Town, the applicant, a male, was re-instated when it was found that he had been unfairly dismissed for sexual harassment. The evidence led in the case revealed that the complainant had been upset and had slapped the applicant when he had asked her to get out of a truck he had been instructed to drive.
Realising that she could be in serious trouble for assaulting another employee, she made up the allegation that the applicant had felt her inner thighs. The Commissioner found that the respondent had failed to prove that the applicant was guilty of sexual harassment. The complainant, and not the applicant, should have been charged for what had happened.
In a more recent 2015 case, Pillay / Old Mutual Property (Pty) Ltd, the applicant, an accountant, resigned after claiming that she had been persistently sexually harassed by her branch manager, whom she had previously had an affair with while the two were stationed at another branch.
Apparently one alleged incident also involved another employee. The two alleged harassers were charged with misconduct, but found not guilty by the presiding officer. The applicant then resigned, claiming she had been constructively dismissed.
The Commissioner noted that the onus rested on the applicant to prove that she had been constructively dismissed. The focus was placed on the respondent’s conduct after the harassment complaint had been lodged and on whether this rendered the employment relationship with the intolerable.
The applicant, testifying in great detail on the incidents and issues which would advance her sexual harassment and constructive dismissal claims argued that the respondent should have appealed the outcome of the disciplinary enquiry because it was “perverse”.
The Commissioner rejected this argument and found instead that the manager had been acquitted because it had not been proved that his attentions were unwanted or that the applicant had sought help.
The Commissioner found that the applicant had expected everyone to “jump to attention” when she approached them. She had inexplicable waited several months before reporting what she alleged to be the most serious incident of sexual harassment.
The Commissioner held that the entire affair was a carefully hatched plot by the applicant and her alleged ‘harasser’ to secure her a transfer from Johannesburg to Cape Town after she had married a man who resided in Cape Town. She had not foreseen that she would fail a polygraph test; that her alleged harassers would pass; or that the scheme would be seen through by an experienced arbitrator.
The application was dismissed because the applicant could not prove constructive dismissal.
These are but two cases, there have been others, often where a sexual harassment complaint is used as a ‘red herring’ to draw attention away from the misconduct of the ‘victim such as in the City of Cape Town case, or to simply ‘get even’. Bear in mind that to be accused of sexual harassment is likely to be highly traumatic for the alleged perpetrator who is likely to be cast under a cloud of suspicion – there being no smoke without fire. This can have a serious effect on the person’s marriage or personal relationship if the wife or partner does not believe them.
So what does an employer do to discourage false claims of sexual harassment?
Ensure that ‘making false accusations against another employee’ is included as a serious disciplinary transgression in the Disciplinary rules which can carry the possible sanction of dismissal.
Ensure that during the induction of new employees, sexual harassment is covered and that they are also made aware that bringing a false complaint against another employee or manager will be considered an extremely serious offence which could result in dismissal.
Include a clause in the employment contracts of new employees that they agree to undergo a polygraph test if called upon to do so.
If a sexual harassment complaint is made, ask both the complainant and the alleged perpetrator to both do a polygraph test. While they might refuse, if they have agreed to undergo a polygraph test in their employment contract, they would have to have very good reason for refusing once called upon to do so. Certainly, a negative inference may be taken to a refusal and depending on corroborating evidence will count against them.
If the sexual harassment complainant refuses to undergo a polygraph test, be especially cautious. Why would a genuine complainant not want to take every measure to ensure that the perpetrator is ‘brought to book’? In such event, encourage the alleged perpetrator to undergo the test if he or she is innocent as the result of the polygraph will strengthen their case.
Ensure that disciplinary initiators are properly trained and know how to go about investigating a complaint, preparing their and presenting their case. They should also be skilful in cross-examination techniques so as to be able to trip up untruthful witnesses.
Ensure that the chairpersons of sexual harassment cases fully understand the Code of Good Practice on the handling of cases of sexual harassment, are conversant with rules of evidence pertinent to these cases and read up on applicable case law before making their findings.
At the end of the day every employer has the right to expect honesty and integrity from employees. Making false claims of sexual harassment is dishonest and underhanded and should not be tolerated under any circumstances.
For further information on our Sexual Harassment Course contact Bruniquel & Associates: Durban (031-3094627), Johannesburg 0861-474722, Cape Town 021-5270044
GA BRUNO BRUNIQUEL
Bruniquel & Associates