A court has upheld the sacking of a bank manager for patting a female teller's backside ostensibly as an expression of gratitude for her good performance.
A court has upheld the sacking of a bank manager for patting a female teller's backside ostensibly as an expression of gratitude for her good performance.
The incident, which the man claimed was a friendly interaction, happened at close of the day's transactions at Co-operative Bank as the manager and the teller confirmed that the cash balances were intact.
Describing himself as a sociable and friendly boss, the man said he tapped the woman out of excitement for having ended the day without hitches.
The Operations Manager of the money transfer centre, who had worked at the bank for nine years, denied harassing his colleague.
He was also accused of making an unpleasant comment to another female colleague, a new mother, with whom he had a conversation along the banking corridors.
The two incidents were deemed to constitute sexual harassment and misconduct. The identities of the parties are withheld for their dignity and protection.
Fired and sued
The man was surprised after the bank fired him in May 2016 based on the twin incidents.
This decision has now been endorsed by the Employment and Labour Relations court which has dismissed his claim against the financial lender.
Justice Christine Baari held that the question on what constitutes unwanted conduct is not what a court would or would not find offensive, but whether the individual victim has made it clear that he/she finds the conduct unacceptable.
"The claimant acknowledged that his conduct was unwelcomed by the complainants, and which therefore, constituted breach of the express provisions of the bank’s sexual harassment policy. It is also not lost on the court that the claimant was the complainant's superior at the workplace, and hence had some level of control over how they discharged their duty," said the judge in the verdict.
Sexual harassment is prevalent in workplaces.
The court added that the bank had fair and justified reasons to terminate the claimant. It stated that the termination process was fair and lawful.
'Illegal termination'
In his court papers, the man wanted the judge to declare that the termination was illegal, unlawful, unfair and inhumane. He indicated that he did not intend to hurt the ladies and that he was only joking.
He stated that on Saturday, April 2, 2016, it was his duty as the operations manager to check tellers' cash at the end of the day to ensure the systems balances matched with the physical cash.
The court heard that after a hard day's work, he cracked jokes with other colleagues, including one teller, Ms MN, as he checked the cash. He patted her back as he checked her cash and when he confirmed that her cash was okay, they locked the box and she left the office.
Asking the court to rule in his favour, the man said that Ms MN did not express any discomfort and there was no evidence that the act created a hostile or offensive environment.
He emphasized that "the gesture was simply a friendly interaction, which is common in a social work environment".
Two days after that incident, on the evening of April 4, after checking the cash of another colleague, Ms WO, she requested him to open the main trap door for her to leave.
As they were conversing, he told her that she needed to leave to go and nurse her three-month-old baby and jokingly told her to "hurry up as she appears not to have expressed enough milk for her".
Confronted
Shortly after leaving the workplace, she sent him a text message stating that his words were not friendly. He apologised for hurting her unknowingly.
He said that the issue was conclusively resolved since he and Ms WO had worked closely together.
A week later, he was summoned by the human resource manager, where he was asked how he related with his staff.
He answered that they relate "with putting God first, praying together, holding daily meetings and socializing as a team". Thereafter, the sexual harassment accusations were read to him.
He read mischief because the two complaints were sent to the human resource manager on the same day at almost the same time.
Fired by committee
At the disciplinary committee, he expressed his innocence and apologized to the complainants in an effort to resolve the misunderstanding. However, he was later issued with a termination letter.
He told court that the termination was a very stringent disciplinary measure and that the bank could have at least transferred him to any region and in any capacity instead of terminating his employment as a mode of disciplinary action.
For its part, the bank told court that it reviewed the CCTV footage and confirmed that the allegations made by both staff were indeed legitimate.
It added that actions of sexual harassment constituted gross misconduct warranting dismissal.
Ruling on the dispute, Justice Baari stated that the Employment Act prohibits sexual harassment in the workplace.
