A female manager accused of sexually harassing a female colleague has been cleared again after the labour court found that her hugs, blown kisses and a brief touch on the woman’s buttock did not amount to sexual harassment.
Farida, a nursing clinic manager at a Western Cape clinic, faced disciplinary charges over alleged incidents involving colleague Tracey between August 2022 and January 2023.
An external disciplinary chairperson, Stephanie Sirmongpong, had earlier found Farida not guilty, saying Tracey did not show enough evidence for her claims.
“The employee [Farida] showed that she is now aware that the practices she had for showing appreciation to staff can be regarded as inappropriate. Her testimony and those of all witnesses show that gestures the accused used were signs of appreciation. The employee [Farida] to adhere to the City Policy and stop current practices in the work place.”
The City of Cape Town challenged the finding, asking the court to review and set it aside, claiming it was “inherently contradictory and illogical”.
But acting judge André Oosthuizen dismissed the application, finding that the chair’s decision was not one that a reasonable person could not have reached.
The court stressed that sexual harassment must involve unwanted conduct of a sexual nature.
Four main allegations were brought against Farida.
The first was that she had asked Tracey for a kiss. Farida strongly denied this, and the court found there was no evidence to reject her denial.
The second allegation was that Farida frequently hugged Tracey.
But witnesses told the disciplinary hearing that hugging was common at the clinic and that Farida hugged other employees as a way of showing support and affection.
One colleague, Pearce, described the workplace as somewhat “tactile”, saying employees frequently hugged each other.
The court found that Farida’s regular hugs were not shown to have a sexual or improper intention.
The third allegation involved Farida allegedly blowing kisses at Tracey and telling her that she was beautiful.
Again, witnesses said Farida used the gesture with other employees to show appreciation.
Witness Serra told the hearing that Farida would sometimes blow a kiss after a colleague had done something for her, such as bringing her coffee.
She said that, because the nursing staff was mostly female, colleagues were generally relaxed about hugs, cheek kisses and other gestures that were not intended to be sexual.
Farida admitted blowing kisses at Tracey but gave the same explanation.
The court found that, when viewed in context, the gestures were not sexual in nature.
The fourth and most serious allegation involved Farida touching Tracey’s buttock while she was standing at a printer.
Tracey said Farida then left the room giggling.
Farida admitted that her hand had brushed against Tracey’s buttock but denied that she had grabbed or pinched her or deliberately touched her in a sexual manner.
She also denied running from the room giggling.
Pearce was in the room but did not see Farida leaving while running or giggling.
The court noted that Tracey was initially unsure who had touched her and later sent a WhatsApp message to Pearce saying she thought Pearce was the person who had touched her.
This, the judge said, suggested that the contact was fleeting.
The court also noted that Tracey waited five months before reporting the incident to management or lodging a grievance.
Judge Oosthuizen said there was a “vast difference” between a fleeting brush against someone’s buttock without sexual intention and deliberately pinching the buttock and giggling afterwards.
The evidence, the judge found, supported the former version.
Although the judge said the disciplinary chair’s decision could have been more detailed, its brevity did not make it irrational or unreasonable.
“It would have been far more helpful if first respondent had elaborated on the findings made and dealt specifically with the four categories of harassment which featured in the charges against Farida.
“Furthermore, the finding should have set out in greater detail the process of reasoning followed by first respondent. Allegations of workplace sexual harassment are serious allegations, and the disciplinary chair should endeavour to deal with such allegations as comprehensively as possible.”
The court said the chair’s advice that Farida should be more careful with her gestures did not mean she had been found guilty.
He accordingly dismissed the application, meaning Farida is cleared of the sexual harassment charges.
*Full names of the people involved in the matter have been concealed
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