In dealing with sexual harassment cases in the workplace, the CCMA should be a safe, gender-responsive dispute-resolution forum.

Commissioners should shed patriarchal predispositions in their assessment of evidence and must be able to grapple with mutually destructive versions by single witnesses to untangle the knot of who was telling the truth.

A Pretoria News report says this is according to the Johannesburg Labour Court, in a sexual harassment claim against a former senior official at Old Mutual.

Nelson Makanda was fired by the company after he was found to have sexually harassed a female employee. The CCMA, however, found he was unfairly dismissed.

Old Mutual was not happy with this finding and turned to the Labour Court, where Acting Judge M Sibanda criticised the manner in which the commissioner of the CCMA handled the matter.

The commissioner chose Makanda’s version over that of the woman, referred to as ‘Ms S’.

One of his reasons was that Makanda made a better impression as a witness. Regarding the commissioner’s findings, Sibanda noted that ‘precious little’ was rationally connected with the evidence before him.

He said the commissioner’s conclusions were so patently flawed that they fell outside the limits of reasonableness.

Sibanda remarked that especially in sexual harassment cases, the versions of the alleged perpetrator and the victim must be carefully analysed against each other and the other objective facts.

The judge said commissioners must be alive to the fraught nature of sexual harassment and conduct cases with sensitivity.

Full Pretoria News report

Old Mutual Life Assurance SA (Pty) Ltd v Makanda and Others