Pretoria - A five-year dispute as to whether a now former Shoprite Checkers clerk was slapped on the backside by her then manager came to head when the Labour Court ordered the retail giant to pay her R25 000 in damages.
Shoprite Checkers appealed the findings of the Commission for Conciliation, Mediation and Arbitration (CCMA) and was partly successful in the appeal. The court halved the damages awarded to the woman, only identified as JL in the judgment.
The CCMA awarded her R50 000, but Judge Robert Lagrange on Friday ordered that R25 000 was fair. The payment is in terms of the Employment Equity Act.
The judge, however, ordered Shoprite Checkers to adopt a sexual harassment policy and a programme to inform all its employees about it. The retail chain must report to the CCMA on or before March 15 what has been done in this regard.
In another partial win for Shoprite Checkers, the judge overturned the finding by the arbitrator that the woman was constructively dismissed or that her dismissal was procedurally unfair.
The woman was dismissed after her now former employer claimed that she did not speak the truth that her supervisor had sexually harassed her.
She faced a disciplinary hearing at the time, but she refused to take part.
It all started in December 2016, when the woman was assisting the general manager, only identified as KB in the judgment, to check details of a client on the computer.
JL claimed that while they were alone in the office and they leaned over the computer, KB gave her a slap on the left buttock. As they proceeded to the printer outside the telesales room, JL claimed that KB giggled.
The following day, her lawyer sent a letter of complaint to management about the incident. She claimed that KB had “slapped her on her private parts” in the office. It much later emerged that she regarded her backside as part of her “private parts”.
JL did not report for work the following day and was booked off sick by her doctor from December 24 until January for stress and anxiety as a result of the alleged incident.
Shoprite conducted an investigation into the incident and subjected KB to a polygraph test. As this was negative and no witnesses saw the incident, JL was told there was insufficient evidence to support her complaint.
JL, however, refused to accept the outcome. She was also subjected to a polygraph test, which did not support her claim. She claimed one of the managers asked her “what kind of game” she was playing.
She was then suspended, pending a disciplinary inquiry for “making a false accusation of sexual harassment against her manager”.
She refused to attend her disciplinary hearing and resigned subsequently, as she believed she had been constructively dismissed.
Shoprite Checkers denied her claim of constructive dismissal and assured her that the inquiry would be conducted by an independent chairperson.
The arbitrator found in favour of JL that she was sexually harassed. It was found that while her manager struggled to explain what transpired at the time, her version seemed more plausible.
The arbitrator found KB to be overly dramatic, confused and evasive at times, which created the impression he was trying to avoid the truth.
She questioned why he denied the event so dramatically, when he might be expected simply to deny that he had slapped her “private parts”.
The arbitrator also took account of the fact that KB could not think why JL would have lied about the incident, as they had a good relationship and he was planning to promote her.
She dismissed KB’s suggestion that perhaps JL thought she would get some time off over the busy Christmas period when leave was normally not granted.
Shoprite, in turning to the Labour Court, argued that the arbitrator erred in the way she dealt with two irreconcilable versions of the event.
Judge Lagrange, in partially coming to the company’s aid in its appeal against the arbitrator’s award, said while this was not the most egregious example of an employer’s failure to deal with a sexual harassment complaint adequately, the retail giant’s handling of the matter fell short in some of aspects.