The Constitutional Court handed down judgment on the 17th of June 2021 in the case of McGregor v Public Health and Social Development Sectoral Bargaining Council and Others (CCT 270/20) [2021] ZACC 14. The case relates to the misconduct of Dr McGregor, Head of Anesthesiology at a hospital, who was dismissed after being found guilty of four counts of sexual harassment. The dismissal was based on incidents involving a recently admitted medical practitioner.

After an internal disciplinary inquiry was held, it was found that Dr McGregor was guilty of sexual harassment against the newly admitted intern in that he “inter alia” dared her to remove her clothes and swim naked”. He further made allegations that she was having an affair with him, and he inappropriately pressed himself against her while demonstrating how to carry out a medical procedure. He made further sexual advances and inappropriately touched her leg while they were driving in the same vehicle.

Dr McGregor felt that he was unfairly dismissed and proceeded to refer the dispute to the Public Health and Social Development Sectoral Bargaining Council (“Bargaining Council”). The Bargaining Council confirmed guilt in three of the four charges, but held that the dismissal was substantively and procedurally unfair due to Dr McGregor being treated differently than other employees facing similar charges and that he did not have the opportunity to defend himself with regards to evidence that had been excluded during his disciplinary hearing.

The Bargaining Council awarded compensation in the amount of R924 679.92 (six months’ remuneration) but did not order reinstatement as the charges have been proven. Dr McGregor chose to institute review proceedings in the Labour Court and the Labour Appeal Court because his conduct did not constitute sexual harassment and that he should not have been dismissed. Both courts found that he was guilty, and that the dismissal was procedurally unfair but substantively fair. The courts did not alter the arbitration award regarding the amount of compensation awarded.

Dr McGregor, still not satisfied, appealed to the Constitutional Court, where his appeal was dismissed. The Constitutional Court ruled that the issue had been well ventilated in the previous courts and that he had no prospects of success in the Constitutional Court. The Department of Health lodged a cross-appeal in the Constitutional Court and argued that the amount of compensation should be decreased.

The Constitutional Court recognised the seriousness of the misconduct but held that Dr McGregor has the right to a fair procedure leading up to dismissal. It further held that it is against equity and justice to be awarded such a large sum in compensation for only a procedural glitch and therefore decreased the amount of compensation from six to two months’ compensation for the procedural irregularity.

Justice Khampepe stated the following:
“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.”

The Constitutional Court laid emphasis on the power imbalance given that the victim was a female and much younger than Dr McGregor. This judgment makes the valiant statement that sexual misconduct in the workplace must be met with the harshest of penalties. Employers must use the power afforded to them by the Constitution and put into place sufficient policies to combat sexual harassment in the workplace.

Article by: Su-Mari Kemp
Dispute Resolution Official – Kuruman