I have been reading some very interesting case studies lately and thought that it might be a good idea to share some of these with you. Now before anyone does the usual ‘knee jerk’ and the government’s legislation etc., let me be very clear on one thing. The law (irrespective of whether it is labour law or commercial law or any other specific law) is always open to interpretation – just keep that in mind always.
So let’s bring in the protagonists – Mike, who owns a retail outlet, selling CD’s and DVD’s, in a busy mall. Mike employs George, who is the supervisor and Julie (amongst others) who is a sales person.
Mike goes off to attend a meeting one Monday and comes back to absolute chaos. Julie is in floods of tears and it is evident that all the female staff in the store are really angry with George. Mike starts to investigate.
Apparently, or so the story goes from the female perspective, George and Julie received new stock, as was the norm on a Monday morning, that came with posters. The one poster was of the lead singer of a band, standing in a typical “Michael Jackson” pose with his hand on his genitals. Julie was disgusted at the visual effect of the poster and commented that it should not be displayed in the windows for children to see and George, from the male perspective, thought that the poster was hilarious and that there was nothing disgusting about it.
To illustrate his point (and I suspect to tease Julie), George jumped up and started dancing around Julie, to the music that was playing in the store and every time he came around to the front of her, he gyrated and put his hands over his genitals, mimicking Michael Jackson’s dance moves.
The men found this absolutely ‘fall down funny’ but the women were outraged. George, intent on getting his dance moves just right, misread Julie’s protests of his dance and continued to dance around her. Julie felt that his behaviour was disrespectful and unprofessional and George oblivious to this, just continued to gyrate and dance.
Eventually his dance routine was interrupted, when a whole group of customers entered the store, they had to be attended to.
The male staff saw this as a bit of harmless fun, but the female staff saw this as disrespectful behaviour as well as a form of sexual harassment as he had gyrated and ‘grabbed his genitals’ in Julie’s face.
Understandably, Mike was really annoyed with George. Not only was his behaviour unprofessional, but as the supervisor he should have been setting an example. Sexual harassment is a dismissible offense and Mike went through the process of the disciplinary. George was found guilty and was dismissed.
George lodged with the CCMA and unfortunately Mike lost the case.
Here’s the thing – although the charge of “Sexual Harassment” is an extremely serious one, the CCMA found that “the dismissal was too harsh because it was an isolated incident and was unlikely to be repeated.”
Sure, George’s behaviour was inappropriate, but no-one had been sexually assaulted or raped or threatened and as I have said many times – the punishment must fit the crime.