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The Labour Appeal Court's recent judgment in Mashele v South African Reserve Bank and two others is a clarion affirmation of the seriousness of workplace sexual harassment.
The case concerned a senior specialist legal counsel, Mr Simon Mashele ("Mr Mashele") , who was dismissed by the South African Reserve Bank ("SARB") after a multi-stage process: a grievance hearing, a disciplinary hearing and a 11 day arbitration. Two colleagues, Ms Linda Sithole and Ms Simphiwe Mukhari, testified to repeated, unwelcome sexualised conduct and comments, from a hug accompanied by touching of buttocks, to explicit remarks about bodies, to suggestions about entering a bathroom together, and offers of a holiday in exchange for selfies. The arbitrator concluded that the conduct was sexual in nature, unwelcome, perpetrated by a manager over subordinates and incompatible with a safe working environment, rendering the dismissal procedurally and substantively fair.
Mr Mashele filed an application to review and set aside the arbitrator's award, seeking an order that, if his dismissal were found to be procedurally or substantively unfair and the sanction disproportionate, the SARB reinstate him without loss of income or benefits. His case on review was that dismissal, as a sanction for a first‑time offence, was unduly harsh. In his supplementary affidavit, Mr Mashele disputed the arbitrator's factual findings and contended that the SARB had not discharged the onus of proving the allegations of sexual harassment, bullying and intimidation against him. He further argued that there was no evidence on the record establishing a breakdown of the employment relationship. The Labour Court rejected his arguments and upheld the arbitrator's decision but granted Mr Mashele leave to appeal.
In dismissing the appeal, the LAC found that there was direct evidence of multiple incidents of harassment; there were similarities in the complainants' experiences; there was an absence of any credible motive to fabricate; and a conspiracy theory involving juniors "ganging up" against a senior manager to assist someone supposedly evading performance management, was implausible. Also of relevance was Mr Mashele's shifting explanations and a concession under cross‑examination that his hand might have touched buttocks during a hug, despite an earlier denial, while also maintaining a blanket denial of other events.
On the delay in reporting the harassment, the Court was explicit: reluctance to report is common and must be understood against fear, shame, power imbalances, and prior negative experiences. The complainants explained those dynamics; Mr Mashele himself conceded the difficulty for women to come forward. Delay in reporting harassment, without more, did not detract from the probability of the misconduct.
Mr Mashele initially suggested that dismissal was too harsh for a "first‑time offender," then abandoned this argument when confronted with his concession as to the seriousness of the proven conduct. The arbitrator's finding that dismissal was justified in light of the repeated, sexualized conduct by a manager towards subordinates, its impact on victims, and the employer's duty to provide a safe workplace, fell well within the band of reasonable outcomes.
This case reinforces the position that employers are entitled to act decisively against unwelcome conduct of a sexual nature. It confirms that delays in reporting harassment do not necessarily undermine the validity of a claim, and that clear, direct evidence of the sexual harassment can justify dismissal, even for a first offence.
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