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Friday, November 27, 2020
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Court lets Rhodes University lecturer off sexual harassment hook

Philani Nombembe 

A Rhodes University lecturer accused of sexual harassment has been given a reprieve, just 20 days before his contract with the university ended.

The institution hauled the lecturer, whose name is known to this publication, before a disciplinary hearing in July last year. The lecturer was found guilty of sexual harassment and he took the decision to the high court in Grahamstown to have it declared “unlawful and void”.

He challenged the guilty finding on technical grounds. The nine-page judgment does not give details of the alleged incident, nor does it reveal the person who made the allegations.

The lecturer complained to the court that the university had “failed to ensure a prompt resolution and conclusion of the disciplinary action” and that “the parties involved in [the] disciplinary hearing had resolved the matter between them in an informal manner that any action taken against him is tantamount to ‘double jeopardy’”.

But what got the lecturer hot under the collar was the fact that his disciplinary hearing was dealt with under a new harassment policy. The university’s harassment officer testified at the hearing that the old policy, although under review, was still being implemented.

“[Rhodes University] admits that the disciplinary hearing was conducted under the auspices of a new procedure. It is conceded in this regard that the new procedure was utilised on the bona fide but mistaken view that it had been approved by the Rhodes University’s governing structures and that it ought to have governed the [lecturer’s] disciplinary hearing,” the judgment reads.

Rhodes University argued that the case concerned a labour relations issue and that the high court was not the appropriate forum to hear the matter. The university denied that it had breached the lecturer’s contractual rights in a manner that could lead to the nullification of the disciplinary finding.

Judge Nomathamsanqa Beshe found that Rhodes University’s disciplinary code and the “old harassment policy” formed part of the lecturer’s employment contract and that the institution’s failure to “adhere to the two documents amounts to a breach of an enforceable contract. He has a right to be dealt with in terms of his employment contract.”

“I am not persuaded that the breach was not material,” said Beshe. “I am of the view that the [lecturer] has succeeded in making out a case for the relief he seeks. Accordingly the application succeeds. The disciplinary hearing against the [lecturer] is declared unlawful and void…”

Beshe made the ruling on December 11. The lecturer’s employment contract with Rhodes University ended on December 31.

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