ConCourt rejects sexual harassment doctor’s reinstatement bid

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The Constitutional Court has refused former George Hospital head of anaesthesiology, Dr Charles James McGregor, leave to appeal his dismissal for sexual harassment and slashed an earlier compensation award, reports <emMedicalBrief. In a unanimous finding, Judge Sisi Khampepe wrote that “the [harsh wrong] of sexual harassment is compounded when suffered at the hands of one’s supervisor” and that McGregor was fortunate to receive any compensation.

McGregor had argued in his leave to appeal that he had been falsely accused; and that none of the forums he had properly assessed the credibility of the victim whose account was riddled with inconsistencies and whose allegations were “trumped up and false”. Instead, those courts had been blinded by “bias and partiality” based on the mere fact that the allegations pertained to sexual misconduct, and that the “emotive nature of the charges” caused them to reach pre‑determined conclusions against him.

In the judgment penned by Khampepe (with Chief Justice Mogoeng  and judges Jafta, Madlanga, Majiedt, Mhlantla, Pillay, Theron, Tlaletsi, and Tshiqi concurring), she said that McGregor had at all times been oblivious to the “power dynamics” of his professional relationship with victim. “He has also vacillated between denying outright that his conduct constituted sexual harassment and flippantly downplaying the significance thereof.

“Furthermore, instead of showing remorse, McGregor has attempted to impugn the credibility of the victim as a witness. His refusal to recognise his wrongdoing adds insult to injury, and his attack on the victim’s credibility is salt to the wound.

“Sexual harassment occurs at the intersection of gender and power, producing a potent stench of subordination, disempowerment and inequality that so seeps through the fabric of our society that it stains its core. Eradicating the scourge of sexual harassment will be a Sisyphean task if its perpetrators are compensated lavishly for their misconduct.

“It is difficult to comprehend that Dr McGregor could walk away with almost R1 000 000 to be paid from a barren public purse. Dr McGregor is of the view that the ‘gross’ procedural unfairness justified that amount, as a bare minimum. I am of the view that six months’ compensation, for minor procedural hiccups in respect of gross misconduct, is entirely too generous … I contemplated the appropriateness of removing the compensation in its entirety on account of the gravity of the factual matrix before me…”.

The background was that McGregor had been employed as Head of Anaesthesiology at George Hospital and in December 2016 was dismissed by Western Cape Health following an internal disciplinary inquiry in which he was found guilty of four charges of misconduct that amounted to sexual harassment. Each of the incidents on which the four charges were based involved a newly qualified medical practitioner, who was completing an internship under McGregor’s supervision and was thirty years his junior.

The first charge was that McGregor, while on duty at an outreach clinic with the victim, made unwelcome suggestions of a sexual nature when he dared her to remove her clothes and swim naked. The second charge arose from the same outreach excursion, when he suggested she have an affair with him. The third charge related to an incident when on their return to George Hospital, McGregor inappropriately pressed himself against the victim whilst demonstrating how to carry out a procedure. The final charge was that McGregor made unwelcome sexual advances and inappropriately touched the victim’s leg whilst they were driving together.

It is significant to note that all of the incidents took place whilst McGregor was on duty, acting within his professional, and senior, capacity.

In January 2017, McGregor lodged an internal appeal against the dismissal, which was dismissed. Aggrieved, McGregor referred an unfair dismissal dispute to the Public Health and Social Development Sectoral Bargaining Council, challenging both the substantive and procedural fairness of the dismissal. The arbitrator found McGregor guilty of three of the four charges of sexual misconduct.

However, he concluded that the dismissal was substantively unfair, because he had not been treated the same as another employee facing similar charges, and procedurally unfair, because McGregor was denied an opportunity to defend himself as relevant evidence was excluded during his disciplinary hearing.

The arbitrator, exercising his discretion, opted not to order reinstatement since the misconduct had been proven and reinstatement would be intolerable. Instead, taking into consideration the nature of the misconduct and the extent of the Department’s departure from substantive and procedural fairness, the arbitrator awarded McGregor compensation in the amount of R924 679.92, equivalent to six months’ remuneration.

McGregor applied to the Labour Court to have the arbitration award, which found him guilty of three of the charges, and the decision not to reinstate him, reviewed and set aside on the basis that his conduct neither constituted sexual harassment nor did it warrant dismissal. Western Cape Health brought a counter-review application in which it too sought to have portions of the arbitration award set aside, namely, the finding that Dr McGregor had not committed misconduct in respect of charge three; the conclusion that the dismissal was procedurally and substantively unfair; and the award of compensation.

The Labour Court found that the arbitrator’s findings in respect of the three charges were reasonable. It agreed with the arbitrator that the procedure adopted at the disciplinary inquiry was unfair but nevertheless reduced the arbitration award in that it found the dismissal to have been substantively fair.

It held that to conclude that the dismissal was substantively unfair despite McGregor being guilty of three of the four charges, was not a conclusion at which a reasonable decision maker could arrive. Notwithstanding that it had altered the arbitration award, the Labour Court dismissed the Department’s cross-review application and declined to set aside or modify the compensation.

McGregor approached the Labour Appeal Court, seeking an order that his dismissal was substantively unfair and that he be reinstated. The Department once again raised a cross-appeal in which it averred that the Labour Court had erred in not revisiting the compensation in view of its finding that the dismissal was substantively fair.

[Although the Labour Appeal Court agreed that the dismissal had been procedurally unfair, like the Labour Court, it concluded that the arbitrator had unreasonably ignored the seriousness of the misconduct. Accordingly, the dismissal based on findings of sexual harassment were indeed substantively fair.

It further agreed that reinstatement would have been inappropriate. However, it did not revisit the award of compensation.

McGregor then approached the Constitutional Court to appeal against the judgment and order of the Labour Appeal Court; asking that  it confirmed arbitrator’s finding that the dismissal was substantively and procedurally unfair and ordered his reinstatement.

He submitted that his dismissal, which he said was based on untrue allegations of sexual misconduct, implicated his rights to fair labour practices under section 23 of the Constitution, and to a fair and impartial hearing in terms of section 34. Further, he submitted that it was in the interests of justice for the Constitutional Court to grant leave because of the prospects of success that his application had.

The thrust of his argument was that mere “lip service” was paid to his rights in the internal appeal; that he had been falsely accused; and that none of the forums he has traversed properly assessed the veracity of the charges against him or the credibility of the victim whose account, he submits, was riddled with inconsistencies and whose allegations were “trumped up and false”.

Instead, he submitted, those courts had been blinded by “bias and partiality” based on the mere fact that the allegations pertained to sexual misconduct, and that the “emotive nature of the charges” caused them to reach pre‑determined conclusions against him.

The Constitutional Court found that it was not in the interests of justice to grant leave in respect ofMcGregor’s appeal against his dismissal (main application) because it constituted nothing more than a dispute of fact.

Along with a condonation application, the Department lodged a cross-appeal on the basis that the Labour Court erred in failing to review the compensation award, and the Labour Appeal Court erred in failing to address the cross-appeal, even though it had been addressed on the question of compensation.

The Constitutional Court that the Labour Court and Labour Appeal Court misdirected themselves, it was in the interests of justice that leave be granted.

Khampepe writes:

“Truly, the harshness of the wrong of sexual harassment is compounded when it is suffered at the hands of one’s supervisor.

“Not only was Dr McGregor at all times oblivious to the power dynamics that undergirded his professional relationship vis-à-vis the victim, he has also vacillated between denying outright that his conduct constituted sexual harassment and flippantly downplaying the significance thereof.

“Furthermore, instead of showing remorse, Dr McGregor has attempted to impugn the credibility of the victim as a witness. His refusal to recognise his wrongdoing adds insult to injury, and his attack on the victim’s credibility is salt to the wound.

‘This is a curious case. The Labour Court failed to give any cogent reason as to why it saw fit to leave the (not insignificant) award of compensation untouched, despite having varied a significant portion of the arbitration award from which it flowed. The misdirection was then compounded by the Labour Appeal Court’s inexplicable conclusion that it would not revisit the compensation award because it (incorrectly) believed it had never been asked to.

“These curious misdirections are particularly unfortunate because this matter relates to sexual harassment in the workplace, perpetrated by a senior medical practitioner who has remained unrepentant for his misconduct with apparent oblivion to the fact that his behaviour constitutes the marrow in the backbone of a culture of sexual harassment that plagues this country’s workplaces.

“Sexual harassment occurs at the intersection of gender and power, producing a potent stench of subordination, disempowerment and inequality that so seeps through the fabric of our society that it stains its core. Eradicating the scourge of sexual harassment will be a Sisyphean task if its perpetrators are compensated lavishly for their misconduct.

“It is difficult to comprehend that Dr McGregor could walk away with almost R1 000 000 to be paid from a barren public purse. Dr McGregor is of the view that the ‘gross’ procedural unfairness justified that amount, as a bare minimum. I am of the view that six months’ compensation, for minor procedural hiccups in respect of gross misconduct, is entirely too generous. I cannot but conclude that, on a conspectus of all of the above, the Labour Court should have reviewed and reduced the compensation.

“And, all of the above would have been considered by the Labour Appeal Court had it applied itself to the Department’s cross-appeal, as it should have done. What would have become crystal clear much sooner is that the award of compensation in the amount awarded by the arbitrator is exorbitantly high and at odds with the principles of equity and justice.

“I have contemplated the appropriateness of removing the compensation in its entirety on account of the gravity of the factual matrix before me. That being said, I am aware of the fact that employees, including Dr McGregor, are entitled to fair labour practices and procedurally regular dismissals. In the result, I reduce the award of compensation to an equivalent of two months’ remuneration.

“In Campbell Scientific Africa, the Labour Appeal Court said that a sanction serves an important purpose in that it ‘sends out an unequivocal message that employees who perpetrate sexual harassment do so at their peril and should more often than not expect to face the harshest penalty’. Let a message be sent: ‘this is the protection which our Constitution affords’.”

Each party was ordered to bear their own costs.

R Stelzner SC and A Thiart instructed by Van der Vyver Incorporated
J Van der Schyff instructed by State Attorney, Cape Town

 

Commenting on the judgment in Daily Maverick, constitutional law expert Prof Pierre de Vos writes that since not all employers, nor all judges and commissioners, seem to recognise the serious harm inflicted on employees who are sexually harassed. they should all be compelled to study the McGregor judgment.

According to De Vos, the first notable aspect of the judgment is its emphasis on power imbalances in the workplace, and its acceptance that “at its core, sexual harassment is concerned with the exercise of power and in the main reflects the power relations that exist both in society generally and specifically within a particular workplace”. He says this emphasis on power discrepancies between the parties in sexual harassment cases is important.

It serves as a reminder that the definition of sexual harassment in the relevant Employment Equity Code, which defines sexual harassment as “unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace”, should be read together with the section of the code requiring consideration of “the respective positions of the employee and the perpetrator in the workplace” when assessing whether conduct amounts to sexual harassment.

De Vos writes that the court also emphasised that sexual harassment has a negative impact on the victim in a variety of ways. “Not only ‘is it demeaning to the victim’, but it also ‘undermines their dignity, integrity and self-worth, striking at the root of that person’s being’. It ‘strips away at the core of a person’s dignity’ and ‘promotes a culture of gender-based violence that dictates the lived experiences of women and men within public and private spaces and across personal and professional latitudes’.”

De Vos writes that the judgment is the endorsement of the view that the prevalence of sexual harassment in the workplace ‘poses a barrier to the achievement of substantive equality in the workplace”. He reads the judgment as an acknowledgement that all these factors pose a barrier to the achievement of substantive equality in the workplace. “A next step would be to start a conversation about the kinds of constitutional obligations this may impose on employers, the state and other institutions.”

 

Full Constitutional Court judgment

 

Full De Vos analysis in Daily Maverick (Open access)

 

See also from the MedicalBrief archives:

 

Medicine must address sexual harassment in the workplace

 

Medical students experience 'considerably' higher rates of sexual harassment

 


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